While Washington remained entrenched in the Beltway's budgetary paroxysm which came to pass with the federal government’s October 1st shutdown, the CEO of the National Constitution Center Jeffrey Rosen met local talk radio host Chris Stigall of 1210 AM WPHT (with Scotch in hand) across from Independence Hall for “Cocktails and the Constitution” this Wednesday evening.
In what the duo hoped would mark the first of a bipartisan series in Philadelphia, Rosen and Stigall came together in common cause to broach a variety of constitutional issues. Their initial foray was before a decidedly right-leaning crowd. And though he playfully confessed to being a Democrat, Rosen cited a longstanding acquaintance struck up with Laura Ingraham while working for Bill Bennett in addition to an intriguing anecdote involving a video, Linda Tripp, and lending Ann Coulter a VCR.
After the question and answer period began the dialogue touched on a number of the Constitution’s amendments, though the conversation primarily centered on the Affordable Care Act and the ongoing government shutdown. Between halfway and two-thirds through the event my attention was drawn by a question from the back of the crowd. And the exchange between the attendee and Rosen later drew me into the discussion (though admittedly perhaps not in a way directly related to the specific amendment which was cited).
“I’d like to go back to the Fourteenth Amendment please, where in the Constitution does it state that the government can force us to purchase anything let alone healthcare? As nurses you have a group of us back here that we really want to know that [answer].” One woman queried.
“That’s a great question. It was at the center of the Commerce Clause argument. And the Fourteenth Amendment doesn’t directly speak to it unless you believe that the Fourteenth Amendment’s liberty clause protects a basic right of autonomy that prevents the government from forcing you to buy stuff you don’t want to buy. The argument on the other side is the government forces us to do lots of things. We can be forced to get vaccinated and the Supreme Court said that was fine. We can be forced to wear seatbelts. We can be forced to buy Social Security.” Rosen answered (though ultimately the 2012 ruling on the constitutionality of the Affordable Care Act centered on the federal government’s taxing power rather than the Commerce Clause – which was addressed at other points during the event).
Stigall objected that cases involving issues such as mandatory vaccination pertained to states rather than the federal government, to which Rosen agreed, adding “…so then the counterargument after that is Congress is not forcing you to buy anything because all of us will become sick at some point, all of us will enter the health insurance market, it’s just a –”
Stigall chimed in once again, stating, “…are you saying that…the Supreme Court basically said it’s presumed at some point all of us are going to need healthcare thus it’s different than choosing to buy a home or wear a seatbelt or drive a car or whatever.”
“I am definitely saying that, it’s in Justice Ginsburg’s – I guess that part is a partial dissent – she says, and you know this was the argument the government made, all of us will need healthcare…all of us are going to get sick. It’s just a question of whether we wait and throw ourselves on emergency room care and as a result raise premiums for everyone else because emergency rooms are required to treat us or whether we buy it now, lowering premiums for everyone.”
An additional question from the audience ensued before the wanderings of the event’s microphone allowed me to pose my own follow up to the point Rosen referenced pertaining to expansion of federal authority and the Affordable Care Act.
“You referenced the argument that because everyone at one point in their life will enter the health market the government can compel them to enter it. Then – there’s another market that everyone will always enter in their life and that’s the labor market. So can the government actually mandate that you compel people to work? And then in addition can they define...what constitutes work? Umh, and I actually did have a separate question, but you got me fired up on your answer so –.” I trailed off somewhat sheepishly to a mixture of scattered applause and laughter.
“What a great question, this is constitutional dialogue at its best.” Rosen remarked.
“I think that’s called in my show smartass-ery.” Stigall quipped – to a second round of boisterous chuckles and applause.
“No it’s not. In the classroom it gets, you know, a good nod. So I think it’s a great question because I can answer confidently that the framers of the Fourteenth Amendment would have said that the government cannot compel you to work. That in fact the right to make or enforce contracts, and to sue and be sued, was one of the privileges or immunities of citizenship that the framers of the Fourteenth Amendment believed were essentially protected by it.” Rosen stated.
“And in fact here’s a plug on Friday the author of a definitive biography of the framer of the Fourteenth Amendment – the James Madison of the Fourteenth Amendment – called [Republican Congressman] John Bingham, not very well known but just as important for the debates we’re having now as Madison, he’s going to come to the Constitution Center at noon. It’s not going to be cocktails, I think we’re [having] coffee and conversation…we can bring our cocktails.” He continued.
“Sure, and Kahlúa.” Stigall joked.
That response gave way to more banter before Rosen returned to the larger discussion, commenting, “…But Bingham would have believed, and the Fourteenth Amendment framers would have believed, that the right to work or not work is a privilege or immunity of citizenship. However I think the [counter], the response, to your question is the government is not involved in subsidizing the refusal to work and that the decision not to work has no consequences for the broader group [and] decisions of people who do decide to work. However, healthcare is different –”
“But we pay welfare benefits so it does have a broader [impact].” I objected (without the benefit of the microphone I had unwisely surrendered).
“Well…you know these are – you’re right to press on this and in fact since you’re pressing the truth is that there – and lawyers call it the slippery slope – but really the extreme version of this libertarian right to work argument might be an argument against unemployment insurance, against the welfare system. And there are some libertarians and Tea Party people who believe that much of the post-New Deal welfare state is unconstitutional as a violation of the right to work or freedom of contract and so forth.” Rosen responded.
“I should say that there was a time when the Supreme Court enforced this freedom of contract and right to work very vigorously. It was during the Progressive Era when the court struck down minimum wage and maximum hour laws and in a very famous decision from 1903 called [Lochner v. New York] the court struck down New York’s laws requiring maximum hours for bakers. That decision was strongly denounced by people like Theodore Roosevelt as well as [Supreme Court Justice] Louis Brandeis, by you know Republicans and Democrats, and nowadays conservatives like Justice Scalia, Justice Roberts, Justice Alito all believe that that case, the Lochner case, which enforced economic liberty very strongly is an example of judicial activism that’s the flip side of Roe v. Wade because they believe the court was making up a right that’s not written down in the Constitution, the right to contract in that case or the right to work, just like the court made up a right to privacy.” Rosen continued.
“However, and I said there are good arguments on all sides and conservatives often split here, the counter argument among people like Randy Barnett who brought the health care challenge – people [like] my friends at the Cato institute, good libertarians – believe that the Lochner case striking down those maximum wage hour laws was correctly decided and that the court should not be afraid to enforce economic liberty even if those rights aren’t written down…” Rosen added.
As for what my original question for Jeffrey Rosen might have been – and all the constitutional queries that still remain – what a tragedy it would be if this story went without a sequel.
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