I've argued that the legal arguments against the Affordable Care Act are just libertarianism in a thin disguise—the arguments fundamentally make very little sense unless they're part of a broader argument about the unconstitutionality of the welfare state. Janice Rogers Brown, the ultra-reactionary appointed by George W. Bush to the prestigious D.C. Circuit Court of appeals, doesn't see any need for the disguise. In a recent concurrence, Brown lamented the fact that the courts no longer arbitrarily substitute their judgment about economic regulations for that of legislatures:
The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
Brown argues that vaguely defined "economic rights" should be "fundamental"—language that implies that, like racial classifications, any economic regulation should be preemptively unconstitutional. And yet, her opinion also reminds us why the Lochner era has been so widely discredited. Most importantly, she fails to cite any specific constitutional provision that would be violated by the economic regulations she dislikes on policy grounds (although perhaps the secret Federalist Society constitution contains a "cowboy capitalism" provision.) Whether Brown likes it or not, the Constitution was not a libertarian manifesto; it in fact left most economic regulation to the legislative process. Oliver Wendell Holmes famously noted in his Lochner dissent that "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." Nor does the Fourteenth Amendment or any other constitutional provision enact Ms. Janice Rogers Brown's crackpot public choice theories.
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