(BTW, I don’t mean to imply that I know Barnett’s exact thinking on those cases. It may well be that, for instance, Barnett thinks that Lochner is quite flawed.)

But I agree that the current Court’s reading of the Commerce Clause is what limits state action (or doesn’t limit it, as the case happens to be) and you are perfectly correct in teaching that interpretation. Obviously, the current position of the Court will be most important in a contemporary government class.

However, debates over these issues are themselves contemporary and it would be useful for students to have some understanding of where the basis for the opposing arguments rests. I mean, I’d hope the kids come away with better tools for engaging these issues than just assuming that the current Court interpretation is all that matters. That’s particularly important in terms of their understanding Court nominee confirmation hearings, which may change the Court’s interpretation; understanding that the Court interpretation wasn’t always what it is today (e.g. the pre-Wickard, Lochner-era Court saw things very differently); understanding cases like (as mentioned before) Lopez and Morrison, where it looked like the Court was re-examining the everything-qualifies-as-interstate-commerce position, and Raich where it ends up looking like they once again see plenary power in the commerce clause; and understanding the current lower-court cases that will eventually get to the Supreme Court and potentially provoke another change in interpretation of what constitutes interstate commerce.

(Actually I take back the comment about there being any need to understand confirmation hearings. Those are so tightly scripted as to be near-worthless.)

[...] “To regulate” generally meant “to make regular” – that is, to specify how an activity must be transacted – when applied to domestic commerce [...]

And, if I recall, I said above that “to regulate” held the connotation of “to make regular”. I guess I should apologize since, before I was asked for a citation and reread the article (which I obviously didn’t have in front of me earlier), I added what I thought would have been a helpful rephrasing that the author doesn’t use. However, I think I supported the basic claim that “to regulate” meant “to make regular”.

And, btw, though the author goes into to detail to conclude that “to regulate” == “to make regular” in the longer body of the article, you only had to read the single-paragraph abstract to see it. Maybe it was expecting too much of you to click on the link I provided and read the abstract instead of me typing it in.

Now, I’m not sure where you have shown that the meaning the author describes “says the opposite” of what I said, since I don’t see anything the author says that I disagree with…

[Rereading my earlier comment] Oops! Now I see where I screwed up. In the earlier post, I was trying to say that today’s students probably assume that the interstate commerce clause give the feds the power to decide and enforce rules “about any aspect of any activity”, but I instead said “about any aspect of an activity”. And, yes, that is contrary to the definition Barnett comes up with, and I agree with his definition. I am a crappy typist, but I should have proofread that more carefully. Sorry. And, I’m doubly sorry if that was the crux of this disagreement.

To be clear, I was responding to a comment that I took to imply that the interstate commerce clause does allow the feds to make rules about virtually any aspect of any activity. Though I may not have phrased it clearly, my understanding of the history of the commerce clause is that the interstate commerce power was there largely to prevent the states from imposing tariffs on the goods of other states that crossed their borders and from generally legislating rules that would hurt trade between the states. It’s really the broader New Deal-era reading of “commerce” than “regulate” that is more important here (as I’m sure you know, since you read all of Barnett’s piece, which goes into detail on what “commerce” meant).

Back to the subject of this thread, the bit of Barnett’s article you quoted notes that the power to regulate something is not the power to prohibit it. I think that undermines current use of the commerce clause to justify federal bans on various substances, contra the poorly decided (IMO) Raich ruling. I’ll admit that I don’t have any cites on hand that specifically address whether the commerce clause can be used to prohibit a citizen from not engaging in commerce. But, I think making the case that the CC doesn’t empower banning an activity would at least be helpful in making the case that it doesn’t empower banning a non-activity.

BTW, I did read the article I pointed you to. I am sorry I misspoke regarding “any” vs. “an”, though I the article does confirm the “regulate” == “make regular” statement, which is what I thought you were questioning in your earlier post. I think that posting a link where reading the first paragraph of a cite would substitute for retyping the paragraph is reasonable, but you are welcome to insist on someone typing in the quotes.

First, the phrase “to eliminate irregularity” appears nowhere in the 50-page article. Second, at no point does the author claim that the meaning of “to regulate” has changed over time. Third, the section on “The Meaning of ‘To regulate’” (p. 139-146) has as its entire purpose the question of whether “to regulate” includes the ability “to prohibit” (for example, in the case of drug-use laws):

Samuel Johnson defines “to regulate” as “1. To adjust by rule or method… 2. To direct” In other words, the term “to regulate” means “to make regular”. The power to regulate is, in essence, the power to say “if you want to do something, here is how you must do it.”… The power to regulate the making of contracts or wills is not the power to prohibit such activity, even though contracts or wills that do not conform to the regulation are necessarily unenforceable. A pure regulation of commerce, then is a set of rules that tells people, “If you want to trade or exchange with others, here is how you must go about it.” [The Original Meaning of the Commerce Clause, p. 139]

The author also ties this to the 2nd Amendment, again counter to what was claimed upthread, that militias can be governed by rules, but not prohibited entirely:

That the Constitution uses the term “to regulate” in this sense is made plain by the Second Amendment, the first portion of which reads, “A well-regulated Militia, being necessary to the security of a free State.” A “well-regulated” militia is not a prohibited militia but one that is well drilled. [The Original Meaning of the Commerce Clause, p. 141]

So, in conclusion: Was freedomfan looking at the article in question when he offered it as a source? No. Does it say what he claims it said in regards to the meaning of “to regulate”? No, actually it says the opposite. Does this turn out to be the case every time someone equivocates over providing a short quote for their citation? Yes, it does.

Congratulations, freedomfan, you win by once again getting me to read an article which you did not look at in order to verify that it doesn’t say what you claimed it did.

Yes. A short quote is both a reasonable expectation and the standard way of providing a citation. I’ve been lied to too many times on the Internet, sent on a wild goose chase for nothing (sometimes 800-page books), to waste time that way again.

Just provide a short, on-topic quote; it should be very easy. Why be aggressive in response?

So you demand that he provide you with a citation. And when he provides one, you refuse to read it because you think he’s probably lying?

“Not to mention that the clause allows legislation regarding actual interstate commerce, not regarding every activity that has any conceivable impact on commerce, which, as you note, would be all activities.”

Well, I think this is clearly a case where you are substituting your understanding of the commerce clause for the Supreme Court’s understanding. While it may be the case that your understanding is better, it doesn’t matter. The Court’s rulings in Wickard and Raich indicate to me that the Court believes the power of the commerce clause extends to things that are related to or have an impact on interstate commerce without actually being interstate commerce.

That’s why I teach it that way. Whatever understanding the framers may or may not have had about what “to regulate” means doesn’t really matter. What matters is how the current Court interprets those words, because that’s the interpretation that governs state action. And it seems foolish for me to assume a different meaning. I would effectively be telling the Court that my understanding of what the Constitution means is better than their understanding.

I’m certainly not enough of an expert to feel qualified to make that claim. I doubt you are (although maybe you are). Even a guy like Randy Barnett, who probably is so qualified seem to want to argue not that the Court’s previous interpretation was wrong, so much as that interpretation doesn’t apply to the Affordable Care Act and a different rule should be used to rule it unconstitutional. It’s important to note that big shot lawyers who are by no means lefties (Orin Kerr, for example) appear to view this as a losing argument.

Also familiar with wasting my time in spurious blog posts, this is why I was careful to define citation above as “(quote, name, link)”. I’m not going to waste my time reading a 50-page article on the off chance that you’re not lying and there’s some tidbit I can filter out that is on-topic. It’s never succeeded in the past. If there’s actually something on-topic therein, it should be a simple matter to quote one or two sentences (look above for several examples where I did that in this thread).

Otherwise, I’m forced to assume that you’re blowing hot air.

Well, I’m not sure what to tell you. I would say, however, that your situation –being able to afford paying out of pocket despite having no income– is, if not unique, quite rare.

I also find it hard to believe your doctor is refusing Medicare patients. Even the estimable Dr. Rand Paul doesn’t do that. Not only are those patients in need of care, but Medicare money spends just as good as “Negotiated with Challeron” money. (Besides…if I were your doctor, I’d ask who is the more attractive customer: the guy with no income and no insurance? Or the Medicare patient whose ability to pay is backed by the full faith and credit of US government? That answer should be obvious.)

As to your fears of this:

“and when doctors leave the profession, and we’ve gotten down to the level of Medicine Men willing to take chickens and goats in payment.”

Not gonna happen. You know why? Because when “doctors leave the profession,” what are they going to do with all that medical training? Use it to become a stockbroker?

Weren’t you commenting, upthread, that the Greedy Bastards (or words to that effect) could damn well go broke, and we’d import the finest medical minds from overseas? My doctor has already suggested to me that he’s going to stop taking Medicare/Medicaid patients, because da Gummint doesn’t seem to think that actually paying for the care of said patients is important to them (“Doctor’s Fix”? When we’re the only game in town? You’re kidding, right?); and when doctors leave the profession, and we’ve gotten down to the level of Medicine Men willing to take chickens and goats in payment, then I guess we won’t have to worry about any Death Panels anyway….

Nah…it’s probably a wash. Medicare, though, because of the enormous buying power of the US government, does increase prices pretty much across the board. (Argument #1 for why “single-payer” would be a nightmare.)

If a private firm does this…its bad (monopsony power), but the government…why it is a good thing to transfer wealth from one group to another! Yippee!

What I’m saying is that if preserving the private-for-profit health care system was our goal, then the individual mandate is a means to that goal. Let’s remember, there were people in high places who wanted to chuck the private-for-profit healthcare system COMPLETELY. It is not, as it turns out, a means to give the government ever increasing control of our lives. (Precisely the opposite, in fact.)

The problem is that the current reform wont preserve anything it will just bring the day of reckoning closer to realization. The cost containment measures in the reform legislation have largely been measures Congress could have taken, indeed was supposed to have taken ever year for something like the past 10 but has passed on it. Now is going to be different with even more draconian containment measures? I don’t think so…the chief actuary of Medicare doesn’t think so, and neither does the CBO.

If having people do stuff against their will is tyranny, then any and all government is tyranny. Period. And that’s pure bullshit.

And war is peace, freedom is slavery, and ignorance is strength, you forgot those Fargus.

There you have it ladies and gentlemen, with one post Fargus has put to rest all the arguments of Spooner, Hoppe, and Rothbard. It is simply bullshit. So speaketh Fargus.

Hmmm…seems like you shouldn’t have that problem in the near future, since Obamacare effectively made “pre-existing conditions” a thing of the past.

Also, that you have a nice, helpful doctor is awesome. But understand that’s a rarity and many doctors don’t care if they have to fill out more paperwork…if they make more money. (More money=hire someone to fill out the paperwork.)

@ Steve Verdon

“I know, I know you’ll claim that Medicare is cheaper than private health insurance in terms of administrative costs.”

Nah…it’s probably a wash. Medicare, though, because of the enormous buying power of the US government, does increase prices pretty much across the board. (Argument #1 for why “single-payer” would be a nightmare.)

What I’m saying is that if preserving the private-for-profit health care system was our goal, then the individual mandate is a means to that goal. Let’s remember, there were people in high places who wanted to chuck the private-for-profit healthcare system COMPLETELY. It is not, as it turns out, a means to give the government ever increasing control of our lives. (Precisely the opposite, in fact.)

People who benefit from insurance pools without contributing now must contribute. So what’s the problem with that?