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Friday, February 04, 2011
Conscription and Commerce
There is one unequivocal benefit to the recent controversy over the constitutionality of ACA's Individual Mandate: The argument against the mandate may force us all to revisit the correctness of the Selective Draft Cases, 245 U. S. 366 (1918). Randy Barnett's amicus brief in the Sebelius case attempted to distinguish the Draft Cases by arguing that conscription of personnel is somehow more explicitly linked to the power to raise armies than conscription of insurance purchases (aka conscription of "commercial" activity) is to the power to regulate commerce. In the amicus brief's words,
To be sure, there are exceptional situations in which the federal government may mandate individual activity. It can require registration for a military draft. Selective Draft Law Cases, 245 U.S. 366 (1918). It can require people to serve on juries. U.S. Const. art. III, § 2; id., amend. VI; id., amend. VII. It can require people to pay income taxes and file tax returns. Id. amend. XVI; Brushaber v. Union Pacific R.R., 240 U.S. 1 (1916) (upholding income tax laws and accompanying procedures). But these duties go to the heart of American citizenship. The draft relates to Congress’ explicit power “to raise and support armies.”
Yes, of course, the power to raise armies is an explicit power. So is the power to regulate commerce. If the feds can force someone to join the army, why can't the feds force one to join commerce? How is the nexus in one case to an express power more remote than the nexus in the other case? (And I leave in decent obscurity the offhand claim that somehow filling out a 1040EZ firm "go[es] to the heart of American citizenship").
In truth -- and to their credit -- Hans Bader's and Randy's heart was obviously not in this passage. Their role as litigators and stare decisis barred them from declaring what I hope they believe -- which is that the military draft is unconstitutional. Indeed, if Randy had incorporated some attacks on the draft in his Wall Street Journal piece, I'd even think of supporting his position, if only out of respect for his libertarian chutzpah in attacking a favorite conservative sacred cow.
In fact, if you buy Randy's anti-mandate argument, then you really ought to be denouncing the Draft Cases as a travesty, not distinguishing them as the expression of fundamental duties of citizenship.
The draft's invasion of personal liberty is much greater than the individual mandate. Moreover, the framers' suspicion of standing armies was much greater than their suspicion of commercial regulation. Further, there is a long history of distinguished constitutional lawyers' attacking the idea that Congress has the power of conscription, going back at least to Daniel Webster's great speech of 1814 denouncing Monroe's recommendation that the militia be mobilized to fight the War of 1812.
So come on, Randy: Bite the bullet, tick off the AEI and other conservative allies, and attack the draft -- if not in your brief, then in your op-eds. Consistency, I think, demands that libertarians (among whom I count myself) follow through with libertarian federalism in every area and not only when attacking the favorite statutes of the Left like ACA.
Posted by Rick Hills on February 4, 2011 at 06:42 PM | Permalink
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Traditionally, you were "compelled to serve" people in inns and other public accommodations, so commerce doesn't "just occur" in some ways either. Juries can be done on a voluntary basis [many would do it, especially when they would be paid] too. Both require some compulsion to be fully successful though.
Posted by: Joe | Feb 8, 2011 3:52:19 PM
I think part of the difference stems from the fact that compelling people to serve is a necessary part to a jury's formation, as historically was mandating service from the citizenry, but commerce does not require that individual's be compelled for it to occur. It does, as a fact of nature, happen. Thus congressional authority to regulate commerce does not necessitate that people be forced in any fashion for the activity to arise.
Posted by: Adam | Feb 6, 2011 11:27:28 PM
On re-reading our exchange, I think I might have misunderstood what you meant by "build[ing] up the credibility of the argument." I had understood you to mean building up how persuasive it might be to Supreme Court Justices. But now it seems to me that you meant building up the credibility of the argument for someone like yourself.
If you meant that it would build up the credibility of the argument among academics because it would more philosophically coherent, I have no objection to the statement. Though the response is that Randy is not attempting to persuade ivory tower academics. Randy is trying to succeed in what is fundamentally a political arena. And politics is the art of the possible. If you are already bucking the trend, the way to win is to take small steps--not "challenge that wisdom across the board"--so that arguments previously off-the-wall get on the wall. If the supporters of gay rights had argued for a federal constitutional right to same-sex marriage in, say, 1996, they would not be where they are today.
Posted by: TJ | Feb 6, 2011 5:15:16 PM
Rick, that is not a very helpful analysis. Just as you can find yourself in worse company than Daniel Webster, I could find myself in worse company than James Madison, who obviously thought his Secretary's bill was constitutional.
And while this might be a cheap shot, the other type of conscription we have in modern society--jury service--is as far as I can see precisely based on the power to "constitute Tribunals inferior to the Supreme Court." So Amar's point is valid, but doesn't prove what he thinks it does. Not to mention that under your apparent view, Congress also cannot compel citizens to file tax returns (which is, again, insane in the view of most people, and especially comfortably-situated judges), but one can easily view this as conscripting every citizen to be their own tax collector.
Posted by: TJ | Feb 6, 2011 4:59:01 PM
TJ writes:
saying that Congress can't draft citizens for the army will strike most people as insane.
Really, TJ? Then count me and Daniel Webster as two members of the dissenting minority. And consider the following (quite sane) remarks from Daniel Webster's speech denouncing Secretary of War Monroe's proposed conscription bill :
"The Constitution is libelled, foully libelled. The people of this country have not established for themselves such a fabric of despotism. They have not purchased at a vast expense of their own treasures and their own blood a Magna Charta to be slaves. Where is it written in the Constitution, in what article or section is it contained that you may take children from their parents and parents from their children and compel them to fight the battles of any war which the folly or the wickedness of government may engage in? Under what concealment has this power lain hidden which now for the first time comes forth, with a tremendous and baleful aspect, to trample down and destroy the dearest rights of personal liberty? Who will show me any constitutional injunction which makes it the duty of the American people to surrender everything valuable in life, and even life itself, not when the safety of their country and its liberties may demand the sacrifice, but whenever the purposes of an ambitious and mischievous government may require it? Sir, I almost disdain to go to quotations and references to prove that such an abominable doctrine has no foundation in the Constitution of the country. It is enough to know that that instrument was intended as the basis of a free government and that the power contended for is incompatible with any notion of personal liberty. An attempt to maintain this doctrine upon the provisions of the Constitution is an exercise of perverse ingenuity to extract slavery from the substance of a free government."
Add to this dissenting minority the views of Akhil Amar, who rejects the idea that conscription follows naturally from the power to raise armies, noting that "By itself, the authority to 'raise' armies no more naturally subsumed a power to conscript soldiers than the authority to 'lay and collect Taxes [and] Duties' and to 'constitute Tribunals inferior to the supreme Court' naturally subsumed power to draft tax collectors, customs officers, judges, and bailiffs." The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1169 (1991).
Anyone who challenges the constitutionality of the PPACA is already bucking conventional wisdom. Why not challenge that wisdom across the board, especially if the logic of one's argument is that conscription is presumptively not a "necessary and proper" means for implementing express powers? Regardless of what "most people" believe, one could find oneself in worse company than Daniel Webster.
Posted by: Rick Hills | Feb 6, 2011 4:36:36 PM
The use of "Obamacare" as an clear insult by some rests on their honest opposition to the legality of Medicare itself. I annually read the Cato Supreme Court Review & repeatedly the introduction in effect finds the New Deal a sad day in constitutional history. Knowing they can't go all the way realistically, however, the opponents here make some sort of makeweight artificial middle ground that falls apart upon scrutiny. The edge you hear in their voice at times sounds a bit like desperation.
Posted by: Joe | Feb 6, 2011 11:32:13 AM
Rick, I think you have it exactly backwards. The libertarianism-as-philosophy argument will convince only those people who are sympathetic to it. And saying that Congress can't draft citizens for the army will strike most people as insane. Mike Dorf has a good post on his blog about why, despite the philosophical purity of regarding the Second Amendment as securing the ability of people to engage in violent revolution, the very insanity of the idea appears to 80-year-old comfortably-situated elite judges makes it utterly unpersuasive. If the consequence of buying Randy's argument is that Congress cannot have the draft, then I for one am out -- and I am guessing so too Anthony Kennedy.
But I don't think the textual argument is a non-sequitur as you think. OK, so "regulate commerce" does not allow regulating inactivity; but you say that it is necessary and proper to regulating commerce to regulate inactivity. The necessary and proper clause is ultimately a matter of means-ends nexus, and there is at least some stretching being done, as you have just conceded.
Textually, "raise armies" suggests pretty strongly that, well, Congress can raise armies. True, the text doesn't say precisely how, including whether the army is raised by a draft or by volunteers. But the nexus between the action contemplated by the text -- raise an army by drafting -- is a much tighter fit than "regulate activity by mandating the activity to be regulated happen".
Posted by: TJ | Feb 5, 2011 4:55:58 PM
By the way, the purpose of my post was not to lay into Randy Barnett one more time about the merits of his argument -- I’ve already done that -- but rather to urge Randy's backers to think long and hard about distinguishing, rather than attacking, the Court's approval of the military draft. Yes, stare decisis limits what you can say to a court -- but it would really build up the credibility of the argument if you suggested in other contexts that "commandeering" private citizens is always constitutionally suspect under the Necessary & Proper clause.
As I noted in my other posts on this issue, the problem with Randy's argument is not that he is trying to tighten up limits on Congress' power. It is that he refuses to show his libertarian cards. The real engine behind the argument is not that textual point about "inaction" not being commerce but rather the idea that the link between implied and express powers ought to be especially strong when Congress imposes a serious intrusion on individual liberty. That's a fair argument -- but it really does not appear in his brief. Instead, we get this (to my mind) silly textual argument that "inaction" is not "commerce." Of course, as I say, "inaction" is not "commerce": That proves nothing if one is making an argument under the Substantial Effects test, because that test presupposes that Congress is not regulating interstate commerce. (By contrast, the "Instrumentalities of Commerce" and "Channels of Commerce" lines of doctrine require a showing that the activity being regulated is itself "commercial").
As for the "gotta-draw-a-line-somewhere" argument, I accept the premise -- but i want an intelligible line. It is the Individual Rights theory that makes the inaction/action line plausible -- yet Randy refuses to offer a theory of individual rights to justify the line. That's maddening to me: We have enough arbitrary lines in federalism doctrine already.
In short, my plea to Randy, Ilya Somin, and the rest is that they have the courage of their convictions: Defend the libertarian merits of a ban on commandeering, attack the Selective Draft Cases -- which really, truly are a constitutional outrage -- and stop the textualism that convince only the Amen Choir of the Wall Street Journal op-ed page.
Posted by: Rick Hills | Feb 5, 2011 9:34:56 AM
The textual argument is that the words "regulate Commerce" requires regulation of activity, not inactivity, because "commerce" means active trading.
I'll actually disagree with Professor Hillis here. The quoted statement is only true if you define "regulat[ing] commerce" to exclude compelling commerce. Yet Wickard is quite explicit on this point. 317 U.S. 111, 128 ("The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon."). This is one thing I've never figured out. If the anti-mandate claim is that Congress lacks the power to compel participation in interstate commerce under the Commerce Clause, Wickard isn't just persuasive; it's controlling.
On the conscription point, it's even more fatal to Barnett's argument than you'd think. My understanding is that he attempts to square the above circle by arguing that Farmer Filburn wanted to engage in affirmative conduct (growing his own feed wheat) instead of buying on the commodities market, and not "nothing" like the insurance non-purchasers prefer. This matters, according to Barnett, because if you apply the Wickard principle to cases in which the alternative to participation in interstate commerce is "doing nothing," then there is no limit inherent in the Commerce Clause that would prevent Congress from passing all sorts of ludicrous laws like mandating broccoli purchases and/or consumption, or buying certain automobiles. And because he doesn't believe that Congress could enact those absurd measures, he rejects a construction of the Commerce Clause that even theoretically would prevent it.
(This begs two important points. First, the fact that some crazy measures might be permitted under the Commerce Clause does not mean all or even most insane laws would be, so the argument that permitting the mandate would remove all limits on Congressional power seems woefully incomplete; and second, Barnett ignores the substantial other constitutional protections that would prevent many of these doomsday hypotheticals. But I'll set all of that to the side.)
But in any event, how would this sort of argument not apply to conscription? Where is the inherent limit in the martial powers under the Constitution that, fgor example, would prevent Congress from conscripting every person over the age of 67 to use as human shields in case of armed conflict? Or drafting 15-17 year-olds for Stalingrad-esque suicide charges (e.g., "The first man carries the rifle; when he is killed, the second man will pick up and use this rifle."). I for one think this sort of conscription would be utterly absurd. So under Barnett's odd theory of constitutional interpretation, wouldn't this preclude the draft?
Posted by: Joe | Feb 5, 2011 1:37:39 AM
The draft is a favorite conservative sacred cow? I suppose once Ronald Reagan and Milton Friedman are read out of the movement. I didn't think that had happened yet.
I do wonder in what sense the draft is "necessary" for the express power given to the Congress. I mean, if we're to be textualists in isolation from original meaning, then let's be.
It's true that the activity/inactivity distinction isn't a textual one. Rather, it's an attempt to follow the case law, in particular Wickard, Lopez and Morrison. Wickard was focused on "activity" that while local had substantial effects on commerce. And Lopez talks about "broad categories of activity" that Congress may regulate through the Commerce Clause. Morrison notes that "those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor." It isn't (just) public relations to take these precedents seriously.
Posted by: Thomas | Feb 5, 2011 12:51:41 AM
Neither the power to conscript pacifists nor the power to "regulate inactivity" are expressly given to Congress: Both are implied powers that, if allowed to Congress at all, are only allowed because both are necessary and proper for the execution of express powers. So the textual argument based on the commerce clause is a red herring: Of course, "regulating inactivity" is not regulating commerce among the several states. Whoever said that it was? You've simply mixed up the relevant texts.
More generally, all federal statutes justified by the so-called "substantial effects" test fall under the necessary and proper clause, not the commerce clause. Banning the intrastate extermination of endangered species, the intrastate filling of wetlands, the intrastate consumption of home-grown wheat, etc, etc, all fall outside the commerce clause proper: These laws are permitted only because they are reasonably necessary ways of regulating interstate commercial effects.
So enough of the argument that inaction is not commerce. That argument starts from a true premise and ends in a non sequitur: It is merely a triumph in adroit public relations, not textual reasoning.
Posted by: Rick Hills | Feb 5, 2011 12:05:18 AM
Prof. Hills,
I wonder if you could comment on the common thesis that "if the federal government has the power to force you to buy health insurance, then federal power truly has no limits, and the whole idea of enumerated powers is bunk."
It seems to me that it's blatantly false. Even if we say that the individual mandate is allowed, there is plenty of space in which the federal government cannot legislate, and most of this space consists of the basic rights and duties that we all learn in 1L year and that people in the late 18th century would probably have thought were the most important features of their daily legal lives.
The federal government can't arrest you or lock you up for loitering, or drinking in public, or any one of your standard everyday crimes (Lopez). It can't create new tort law causes of action that are unrelated to federal or interstate issues (Morrison). Even the most strained reading of the commerce clause would not allow the federal government to alter your property rights by decreeing, for example, that the statute of limitations for trespass in every state will be 10 years. The federal government cannot decree that the public trust everywhere starts at the mean high-tide line, or that 4-year-olds are capable of negligence, or that you have a duty to help an injured person. The basic rights and duties that non-lawyers in their everyday lives are almost entirely the domains of state law, and in many cases are untouchable by the federal government.
Posted by: Matt S. | Feb 4, 2011 11:39:25 PM
There is the textual argument and the libertarian argument, and you are melding the two. The textual argument is that the words "regulate Commerce" requires regulation of activity, not inactivity, because "commerce" means active trading. The libertarian argument is simply that libertarianism is a good idea, constitutional text be damned.
There is nothing in logic or text that compels one to believe that if the word "Commerce" in the Constitution reaches only activity, then the power to raise armies cannot penalize inactivity, such as staying home when drafted, or failing to pay taxes when levied.
Perhaps a deep commitment to libertarianism as a philosophy would require one to condemn the draft, or to condemn mandatory payment of taxes. But a belief that the textual meaning of regulating commerce is limited to regulating activity does not. It makes perfect grammatical sense to say that "regulate Commerce" means "regulate economic activity," not start economic activity from nothingness; while "raise an army" means that one can start an army from nothingness.
Posted by: TJ | Feb 4, 2011 11:31:28 PM
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