Submitted by James Miller of the Ludwig von Mises Institute of Canada
The Supreme Court And Natural Law
I won a bet today.
A few weeks ago I wagered with a coworker that the United States Supreme Court would uphold the Affordable Care Act otherwise known as Obamacare. He reasoned that the federal government has no authority under the Constitution to force an individual to purchase a product from a private company. My reasoning was much simpler. Because the Supreme Court is a functioning arm of the state, it will do nothing to stunt Leviathan’s growth. The fact that the Court declared no federal law unconstitutional from 1937 to 1995—from the tail end of the New Deal through Lyndon Johnson’s Great Society—should have been proof enough. He naively believed in the impartialness of politically-appointed judges. For the first time he saw that those nine individuals are nothing more than politicians with an allegiance to state supremacy.
It was a tough but valuable lesson to learn.
As far as unintended effects are concerned, the economic justification for increased government regulation of the health care industry has been argued countless times up to this point. Proponents of intervention are convinced that more bureaucracies, red tape, and central planning are the answer. They have no knowledge of the pricing system and how it functions as the most efficient means through which consumers and producers can interact to come to an agreeable deal. They don’t realize that the undersupply of doctors and care providers is a direct consequence of previous government intervention and occupational licensing. Many actually believe that Obamacare wasn’t written by the insurance industry and isn’t a fascist-like appeasement of another deep pocketed lobbying campaign.
Common sense economics tells us that Obamacare will only lead to further inefficiencies and rationing as decisions of care continue to be made by third parties. Once fully enacted, doctor offices will likely start resembling that of the waiting area of your local Department of Motor Vehicles.
All that aside, the Supreme Court’s upholding of the Affordable Care Act should serve as an eye opener to those who still believe the state exists as a protector of property and defender of the rule of law.
In the present day, the vast number of edicts coming from Washington can hardly be characterized as laws. “But wait,” you may ask, “when legislation is passed by Congress, signed by the President, and ultimately approved by the Supreme Court, isn’t it now considered the law of the land?” While it is certainly true that whatever scheme envisioned by the political class can be enforced by the state’s monopoly on violence, such rules of governance are more often than not laws in the traditional sense.
Historically, what was known as private or natural law rested upon the rational deduction of a set of ethically-based norms. These norms focused on acts considered morally wrong such as assault, murder, rape, and violations of property in general. Such aggressions were seen by classical liberal thinkers as detrimental to social cooperation. According to 20th century legal scholar Edwin Patterson, the concept of natural law evolved from
Principles of human conduct that are discoverable by “reason” from the basic inclinations of human nature, and that are absolute, immutable and of universal validity for all times and places. This is the basic conception of scholastic natural law . . . and most natural law philosophers.
Or as Murray Rothbard wrote in his book The Ethics of Liberty:
The natural law is, in essence, a profoundly “radical” ethic, for it holds the existing status quo, which might grossly violate natural law, up to the unsparing and unyielding light of reason. In the realm of politics or State action, the natural law presents man with a set of norms which may well be radically critical of existing positive law imposed by the State.
Positive law is the kind enacted by the state that bestows special privileges to specific individuals. Whereas natural law is essentially negative in that it disallows for the violent treatment of others, state-sanctioned positive law is the granting of reward that is necessarily provided by confiscatory taxation or government coercion.
What the state, which is institutionalized predation and force, embodies is antithetical to natural law and the very belief that violence is morally repugnant. To characterize the Supreme Court as some great upholder of the rule of law in spite of it being a pillar in the state apparatus is insulting to any decent person that has a basic understanding of justice.
In lieu of the upholding of the Affordable Care Act, it’s now worth asking what the U.S. government can’t do to Americans. As of right now, a sitting president can call for the indefinite detainment and execution of both citizens and non citizens alike with no due process. The band of thieves known as Congress can force the public to purchase a good or service and order its goons to read private communications without prior consent or knowledge. The dollar is constantly inflated to the benefit of major financial institutions, thus destroying the purchasing power of the money Americans are forced into using. The American people are no longer afforded their rights to their property, privacy, or own lives. Those discretions are currently in the hands of the various marionettes of Washington. Whether it is occupied by outright fascists or closet socialists, the state has no regard for liberty in its incremental quest for omnipotence.
As Ludwig von Mises spent his life expounding:
A society that chooses between capitalism and socialism does not choose between two social systems; it chooses between social cooperation and the disintegration of society. Socialism is not an alternative to capitalism; it is an alternative to any system under which men can live as human beings.
In the world of centralized or constitutional government, rules are always made to be broken. The irony in today’s Supreme Court decision is that it was never given the authority to strike down federal laws under the Constitution. The power of “judicial review” was established by precedent in Marbury v. Madison, 5 U.S. 137 (1803) and was not explicitly granted in the language of the Constitution. As Lew Rockwell puts it, judicial review is a
Usurped power not present in the constitution. The anti-federalists had anticipated it, however, seeing it as just another of the viciously increased federal powers to be enabled by the new constitution as versus the far more libertarian Articles, which had been overthrown in the federalist coup at Philadelphia.
Many legal scholars argue that judicial review is an implied power. If that were so, their logic can be applied to each and every blatantly unconstitutional law enforced by the federal government. And as history has shown, this is precisely what has occurred as the Constitution’s purposefully vague language has been the cornerstone for growing Washington’s dominance over every aspect of civil society.
The upholding of Obamacare is just more evidence of the totalitarian jackboot that continues to be pressed down upon on America’s collective throat. Instead of Congress or the President, it was the Supreme Court’s turn to pave the way toward serfdom. In a truly free society, all forms of violence would be condemnable and worthy of legal recourse. Men with badges and guns would receive no special treatment such as they do today. Thieves would be thieves. Murders would be murders. Counterfeiters would be counterfeiters. And mobsters would be mobsters. Titles such as “President,” “Congressman,” “police officer,” or “central banker” would mean nothing under a functioning system of proper law.
To those who may object to natural or proper law, it may be asked “would you not defend your life or the lives of your loved ones against potential aggressors?” For those who answer in the affirmative, they have rationally assumed their property is theirs to protect and their life and the lives of the innocent can be defended from coercion. The only other option would be for a society where no property, including one’s own body, is to be justifiably owned. The widespread practice of the latter tends to be enforced through brutal totalitarianism. The former is the foundation for peace, justice, and prosperity.