I Think That Jason Kuznicki Does Not Understand the History...

Jason writes:

What Can’t Congress Do Now?: If the federal government can force you to buy health insurance merely for being alive — on the theory that your inaction, while stubbornly remaining alive, has indirect effects on interstate commerce — then what can’t the federal government force you to do? It’s a question I noted Randy Barnett asking a couple months ago, with some added salience now that a federal judge has ruled the individual mandate unconstitutional. Others have been asking similar questions, including Megan McArdle and Radley Balko. The American left would like very much to find good answers...

It is a simple fact that health care is big commerce today--one out of every six dollars we spend is spent on health care. And it is a simple fact that all commerce these days is interstate commerce--that is the inevitable consequence of the invention of the railroad. This means that congress's enumerated power:

To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States...

is a plenary power to regulate the health care sector. You are going to be paying somebody something for health care during your life. Congress has the power to regulate when, how, to whom, and how much. That is simply what the Constitution says.

Jason Kuznicki wishes that the Constitution says otherwise: he thinks that a constitutional grant of plenary power to regulate--and thus control--all commercial activity that affects interstate commerce produces a government that is much too powerful. It may well be. That is why there have been repeated attempts to read the Fifth Amendment:

nor shall any person be... deprived of life, liberty, or property, without due process of law...

as a protection of private economic property from government regulation rather than as what it is: a declaration that you cannot be executed, imprisoned, or fined by the government save through proper legal procedures (a declaration that now appears to be a dead letter--but that is a topic for another day).

The fact is that the founders were not classical liberals.

They did not believe in the free market.

They were, most of them and most of the time, mercantilists of one form or another--taking for granted that governments had broad powers to regulate economic commerce for the public benefit.

This was brought home to me once when I was on a panel with Richard Epstein, who began talking about the eighteenth-century classical-liberal foundations of America's constitutional order--as if the theorists of laissez-faire had written in the mid-eighteenth rather than the mid-nineteenth century.

They did not.

And because they did not, most of the founders most of the time took it for granted that of course the government could channel the use you made of your property as it wished.

Indeed, even the nineteenth-century theorists of laissez-faire were not, by our lights, theorists of laissez-faire. Consider Frederic Bastiat, who writes things like:

Let's turn the microphone over to Frederic Bastiat:

(1) There is an article in the Constitution which states: "Society assists and encourages the development of labor.... through the establishment by the state, the departments, and the municipalities, of appropriate public works to employ idle hands..." As a temporary measure in a time of crisis, during a severe winter, this intervention on the part of the taxpayer could have good effects... as insurance. It adds nothing to the number of jobs nor to total wages, but it takes labor and wages from ordinary times and doles them out, at a loss it is true, in difficult times...

(2) For a nation, security is the greatest of blessings. If, to acquire it, a hundred thousand men must be mobilized, and a hundred million francs spent, I have nothing to say. It is an enjoyment bought at the price of a sacrifice...

(3) It is quite true that often, nearly always if you will, the government official renders an equivalent service to James Goodfellow. In this case there is... only an exchange... my argument is not in any way concerned with useful functions. I say this: If you wish to create a government office, prove its usefulness.... When James Goodfellow gives a hundred sous to a government official for a really useful service, this is exactly the same as when he gives a hundred sous to a shoemaker for a pair of shoes. It's a case of give-and-take, and the score is even...

(4) [L]ast year I was on the Finance Committee. Each time that one of our colleagues spoke of fixing at a moderate figure the salaries of the President of the Republic, of cabinet ministers, and of ambassadors, he would be told: "For the good of the service, we must surround certain offices with an aura of prestige and dignity. That is the way to attract to them men of merit.... A certain amount of ostentation in the ministerial and diplomatic salons is part of the machinery of constitutional governments, etc., etc..." Whether or not such arguments can be controverted, they certainly deserve serious scrutiny. They are based on the public interest, rightly or wrongly estimated; and, personally, I can make more of a case for them than many of our Catos, moved by a narrow spirit of niggardliness or jealousy...

(5) Should the state subsidize the arts?... [A]rts broaden, elevate, and poetize the soul of a nation; that they draw it away from material preoccupations, giving it a feeling for the beautiful, and thus react favorably on its manners, its customs, its morals, and even on its industry. One can ask where music would be in France without the Théâtre-Italien and the Conservatory; dramatic art without the Théâtre-Français... ask whether, without the centralization and consequently the subsidizing of the fine arts, there would have developed that exquisite taste which is the noble endowment of French labor and sends its products out over the whole world.... To these reasons and many others, whose power I do not contest, one can oppose many no less cogent. There is... a question of distributive justice. Do the rights of the legislator go so far as to allow him to dip into the wages of the artisan in order to supplement the profits of the artist?... I confess that I am one of those who think that the choice... should come from below, not from above, from the citizens, not from the legislator.... Returning to the fine arts, one can, I repeat, allege weighty reasons for and against the system of subsidization... in... this essay, I have no need either to set forth these reasons or to decide between them.... When it is a question of taxes [and subsidies], gentlemen, prove their usefulness by reasons with some foundation, but not with that lamentable assertion: "Public spending keeps the working class alive"...

(6) When a public expenditure is proposed, it must be examined on its own merits... a presumption of economic benefit is never appropriate for expenditures made by way of taxation. Why?... In the first place, justice always suffers from it somewhat. Since James Goodfellow has sweated to earn his hundred-sou piece... he is irritated... that the tax intervenes to take this satisfaction away from him and give it to someone else.... [I]t is up to those who levy the tax to give some good reasons for it.... If the state says to him: "I shall take a hundred sous from you to pay the policemen who relieve you of the necessity for guarding your own security, to pave the street you traverse every day, to pay the magistrate who sees to it that your property and your liberty are respected, to feed the soldier who defends our frontiers," James Goodfellow will pay without saying a word...

(7) Another species of spoilation is commercial fraud, a term which seems to me too limited... [when restricted to] the tradesman who changes his weights and measures... [it should also apply to] the physician who receives a fee for evil counsel, the lawyer who promotes litigation, etc...

So Frederic Bastiat is in favor of:

1. Stimulative expansionary fiscal policy to fight depressions,
2. large public expenditures for national security,
3. government provision of services that government can provide as cheaply and effectively as the private sector,
4. high salaries for public officials to attract workers of talent and energy and also to boost the prestige and dignity of the government,
5. subsidies for the arts to the extent that public subsidies properly elevate taste and aesthetic values,
6. public provision of police, justice, defense, transportation, and other infrastructure,
7. public regulations of professional practice a la the FDA in order to avoid "spoilation" by doctors and pharmaceutical companies that receive "a fee for evil counsel."

Let us be very clear: The key for Frederic Bastiat is whether Jacques Bonhomme receives good value in the government expenditures that are financed by his taxes and for the results of the mandates the governmetn imposes on him.

Bastiat does not care whether or not Jacques Bonhomme is "coerced" when he is taxed to pay for public schools, public roads, public theatres, government-run courts, government-paid police officers, government armies.

He cares about whether the goods and services that the government provides are valuable ones, whether receives good value for his private purchases--and if not whether and how government "coercion" can get him better value.

And a government that has the power to regulate the economy whenever and however doing so will promote the general welfare is indeed a government that can, in economic matters, pretty much command that you do anything. And that is the default position of even the most liberal of eighteenth and nineteenth century thinkers...