Hillsdale College this week held one of its on-campus seminars, Center for Constructive Alternatives (CCA). The college holds two each semester, each on a different topic, showcasing expert lecturers from across the country. This week’s seminar was entitled, “The Supreme Court: History and Current Controversies.” As usual, the speakers were enlightening, making the general point that the Supreme Court is entrusted with the responsibility of defending the Constitution.
Sometimes the Court has proven more successful than others.
Two major topics of current interest were campaign finance regulation, as in the Citizens United case, and issues with respect to the Commerce Clause – most recently per the Court’s decision on the constitutionality of the Affordable Care Act.
As I listened to the lectures I kept thinking of the arguments made by the winner of the 1974 Nobel Prize in economics, Friedrich Hayek in his 1960 book, “The Constitution of Liberty.” One of Hayek’s points was that democracy only makes sense when individuals can make arguments and arrive at decisions independent of what they are told by their government. How can we possibly decide on whom to elect – and what policies to support – if our only source of information are those in power?
That is one reason we find various rights protected in the Constitution such as the right to free speech, the right to peaceable assembly, freedom of association, and freedom of the press. (As an aside, one might wonder how a system of government education fits into this – but that is a topic for another column.) Capital University Law School Professor Brad Smith, in supporting the Court’s decision in Citizens United, made a compelling argument for the importance of protecting the freedom of political speech .
The Commerce Clause has been used as in a major way to stretch the bounds of the Constitution. Professor Nelson Lund of George Mason University Law School gave a history of the use of the Commerce Clause from the New Deal to Obamacare. Lund made the salient point that, although Justice Roberts ultimately found another way to uphold the constitutionality of Obamacare, we can take some comfort that a majority on the Court held that interstate commerce does not include not buying things.
