The Claremont Institute’s Center for the Jurisprudence of Natural Law (which opened last summer) has launched a new online journal: Right Reason. For its inaugural entry, there’s a great piece by Hadley Arkes, “Turning the Tables on ObamaCare: Returning to Natural Rights.”
Arkes argues that opponents of ObamaCare should not focus exclusively on whether the legislation is authorized by the Commerce Clause. I agree — not because I have the slightest doubt that ObamaCare is a million miles from the original meaning of the Commerce Clause — but because I am increasingly pessimistic that we’ll get five votes to abandon the misbegotten precedents that rewrote the Commerce Clause. Thus, Arkes urges opponents of the ACA to look to first principles:
Past the formulas of the Commerce Clause understood and believed mainly by lawyers, there was something elementary that could be understood by ordinary people and caught crisply by Sarah Palin when she saw in this new scheme the immanence of “death panels”: She saw, that is, that any system of national care managed by the government would lead, as it has led in all such systems, to schemes of rationing. One way or another there would be a denial to patients of surgeries and treatment, based on budgets drawn in the aggregate. And the denial would not come from an insurance company, chosen by a customer among several companies, and subject to appeals. The denial would come with the powers of law, from an agency that would have little fear of being corrected from above, by higher authorities.
In other words, conservatives should mount an argument that government-imposed rationing of health care violates “those deep principles of lawfulness that had to be in place in anything calling itself the rule of law.” It is true, as Arkes points out, that conservatives are much more hesitant than liberals to appeal to such higher principles, which may be called “natural law” principles. This, presumably, is because “principles” are easier to manipulate than the text, and thus invite activist judges to make mischief. I am a firm believer in original meaning, but I also believe that certain parts of the text require us to consult higher principles: What is “due process?” What are “privileges and immunities?” What is “cruel and unusual?” And what is “a republican form of government?” — examples of phrases used in the Constitution without definition. I believe that originalists must look to the natural law background of such phrases, but that we must be guided by how they were likely understood by the ratifying public at the time.