Lochner’s Revenge: What Liberty?

An emerging trope in what passes for a health care debate in this country is the theory that, somehow, health care reform infringes upon the “personal liberty” of its detractors. It’s worth asking what’s meant by this vague mention of a nameless fear, and worth noting that, in the conservations I’ve had on the subject, no-one has been able to substantiate it. In fact, it appears to be something of an opening gambit — an initial move made to intimidate, and quickly abandoned for the feint that it is.

Such buzzword-based mendacity ought to worry us, for its ability to convince or confuse despite its utter triviality. But let’s give them the benefit of the doubt — what threat to liberty lurks in a bill premised on providing health care for all?

Two theories suggest themselves. First, perhaps the proposed tax hike on millionaires is an infringement on millionaire’s liberty, a grievous injury that somehow trickles down to the bill’s largely middle class opponents; second, perhaps the culprit is the “individual mandate,” a provision requiring that all Americans carry some form of health insurance.

The former is a non-starter. While taxes will always have those who debate their very existence, I won’t assume these protesters are concerned about someone else’s taxes. That leaves us with the latter, and the contention that one’s right to avoid regulation in matters economic is a foundational element of American freedom. This, of course, is false: although the Due Process Clause protects against truly irrational regulations, on purely economical issues, the Constitution gives the government a wide berth. Regulation that’s only “rationally” related to a legitimate government interest is always tolerated, and requiring citizens to buy in to some health care regime, to avoid catastrophically expensive, uninsured emergency care, surely fits under this low bar (consider the parallel: mandatory auto insurance, universal and uncontroversial).

Of course, it wasn’t always that way. Under Lochner v. New York, 198 U.S. 45 (1905), the freedom to contract regularly defeated the state’s ability to regulate towards basic welfare issues, such that even the state’s ability to require licensing in expert professions became “controversial”:

This interference on the part of the legislatures of the several States with the ordinary trades and occupations of the people seems to be on the increase. In the Supreme Court of New York, in the case of People v. Beattie, Appellate Division, First Department, decided in 1904, 89 N.Y.Supp. 193, a statute regulating the trade of horseshoeing, and requiring the person practicing such trade to be examined and to obtain a certificate from a board of examiners and file the same with the clerk of the county wherein the person proposes to practice his trade, was held invalid as an arbitrary interference with personal liberty and private property without due process of law. The attempt was made, unsuccessfully, to justify it as a health law. Lochner, 198 U.S. at 63.

Needless to say, that’s no longer the way of things:

What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1935).

We’ve long since transitioned from a society that vests absolute liberty in economic actors. Tea party protesters are literally working on a seventy-year old definition of liberty, one that conceived of pure laissez faire capitalism as the highest constitutional value and, as such, was particularly ill-suited for the challenges of modern democracy, and required a truly “activist” judiciary to police the good intentions of Congress. It didn’t go over well.

The change isn’t irrevocable. We can return to the 1920s’ conception of liberty, provided that, along the way, we forfeit minimum wage laws, child labor regulations, the FDIC, and more. Just so we’re clear on what, exactly, “tea party” protesters want for their country.


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