Allocation, Distribution & Fairness

Peter Boettke:

The juxtaposition of the exchange approach to economics with the approach to economics that emphasizes optimal society allocation and just distribution as products of a benevolent social planner sets the stage for Buchanan's distinction between economics and politics, as well as the emphasis on rules and the institutional framework.  Questions of  "just distribution" are never about particular distributions of resources but instead always about the choices over the rules of the game which engender a pattern of exchange, production, and thus distribution.  Fairness is about rules, not outcomes; justice is about process, not end-states. [Living Economics, p. 50]

Congress shall make no law. . . .

You might be interested in an interview of Hayek done by James Buchanan. Hayek made the following suggestion about the Constitution:

Well, among the Founding Fathers, there were some who very clearly saw the very point I am making.  And I believe they did try, by the design of the American Constitution, to achieve a limit on their powers.  After all, the one phrase in the American Constitution, or rather in the First Amendment, which I think most highly of is the phrase, "Congress shall make no law. . . "  Now, that's unique, but unfortunately [it goes] only to a particular point.  I think the phrase ought to read, "Congress should make no law authorizing government to take any discriminatory measures of coercion."  I think this would make all the other rights unnecessary and create the sort of conditions which I want to see.

I like the idea.  If you are interested in Hayek's analysis that leads to this suggestion, then you will want to read Law, Legislation, and Liberty (all 3 volumes), and perhaps The Constitution of Liberty as well.

Humankind's Natural Propensities

Peter Boettke:

I often tell students that humankind has demonstrated two natural propensities--to truck, barter, and exchange (as Adam Smith taught); and to rape, pillage, and plunder (as Thomas Hobbes taught us)--and which propensity is pursued is a function of the institutional framework within which individuals find themselves living and interacting. The life experience can be a virtuous cycle of wealth creation and healthier and wealthier lives, or it can be a nasty and brutish hell on earth.  So while economics cannot give us exact point predictions, it can, as a science, inform us of tendencies and directions of change as well as the wealth-creating or wealth-destroying capacity of the political economic system. [Living Economics: Yesterday, Today, and Tomorrow, p. 385]

The Doings of Man

Peter Boettke:

If we fail as economic educators, then we fail in our job as economists. . . .The wealth and poverty of nations is at stake; the length and quality of life turns on the economic conditions individuals find themselves living within.

The discipline of economics illuminates all walks of human life, and as such it is an ambitious science.  It explains the doings of man, whether in the marketplace, the voting booth, the church, the family, or any other human capacity.  The economic way of thinking is not just one window on the world; it is the only window that deals with man as a human actor.  This may sound arrogant to the casual reader, but economics also teaches humility.  As F.A. Hayek put it, "The curious task of economics is to demonstrate to men how little they really know about what they imagine they can design." [Living Economics, p. 383] 

UNCONSTITUTIONAL?

Nicholas Quinn Rosenkranz has recently published a very interesting, and dare I assert important, paper in The Stanford Law Review. He opens his paper with this very interesting idea:

"Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?"

Perhaps because I come to study the constitution from the conceptual view of an economist this idea makes perfect sense to me. After all, I recognize that, like Mises, I study human action. Like the neoclassical economist, I study the choices made by an individual.  So, it seems to be in my nature to understand that if the Court declares a statute unconstitutional, the Court is really saying that Congress took an action it did not have the constitutional power to take.  Still, I have to agree with Mr. Rosenkranz that it does seem to be the case that Court opinions, law school faculty, politicians and voters tend to say that it is the statute in question that has some fault.

Is it really important to emphasize who violated the Constitution? I think it probably is very important. Surely it is a good idea for voters to think about the actions of the people they vote for and against. Personally, I can read the Constitution, and when I hear my representative argue publicly that he or she has a power I do not see enumerated in the Constitution I usually vow to vote against that representative in the future.  It seems to me, after all, that when a member of Congress votes to use the power of government in a way that is unconstitutional, that member of Congress is abusing the power of his or her office. 

I think our republican form of government would be improved if our representatives believed it was their personal responsibility to act in a constitutional way.  It seems to me it is possible to hide from this attitude if you are a member of Congress that thinks: "Bummer man, the Court said that law I voted for was unconstitutional."

Consider also that Article VI requires an oath of office for members of Congress. The Oath of Office which is taken by both members of the House and Senate is as follows:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

It seems to me that a member of Congress cannot defend, nor bear true faith and witness to the Constitution if they think it is the statute that is unconstitutional and not their action that is unconstitutional. It is the obligation of each member of the House and the Senate to read the Constitution they take an Oath to defend and be faithful to, and then to act within the bounds of the specific, and enumerated, Constitutional powers granted to their office.  In other words, it seems to me the oath of office makes it the responsibility of each member of Congress not to abuse the power of the office by voting in support of legislation that is inconsistent with the Constitution.

The President also takes a similar oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."  It is not just members of Congress who can act unconstitutionally.  A President that signs a law which is inconsistent with the Constitution is not only violating the constitutional oath of office but is abusing the constitutional power of the office.  I've even read that James Madison believed Presidents would see it their duty to veto Congressional measures that were unconstitutional.  Of course, that doesn't happen today because vetoes are about politics and not about the Constitution.  But why should vetoes be about the Constitution, since it is the job of the Supreme Court to decide which laws, or which parts of laws, are unconstitutional.

It seems to me that by thinking a law is unconstitutional, rather than thinking government is acting to use power in ways that are unconstitutional, we have all come to take the questions of constitutionality too lightly.  Saying "unconstitutional" really should be saying that someone in government, or perhaps many someones, has chosen to abuse the constitutional power of his or her office.

Our Founders and Adam Smith

I guess it has always seemed likely to me that people like James Madison and Thomas Jefferson were influenced in their views of government by the work of Adam Smith.  Perhaps it was the coincidence of the 1776 publication dates for both the Wealth of Nations and The Declaration of Independence.  Or perhaps it was the similarity in conceptual ideas about liberty.  In any case, I just read an interesting article by Samuel Fleischacker which provides evidence that this intuition of mine was not ill-founded:

Adam Smith's influence was thus deeply present in the founders' thought.  This influence was complex, in part because the founders actually read Smith's tome rather than treating it as a hieroglyph for a free trade slogan.  Smith's influence can be seen in James Madison's subtle notion of the relationship between interest and virtue, in the remarks Madison and others made about the link between economic occupation and moral character, and in the trust in ordinary people's judgment that Madison shared with James Wilson, Thomas Jefferson, and some of the other founders.  Smith's importance to American political thought in the 1780s should be taken much more seriously than it has been.  It is remarkable that America has a Constitution that, in the functions it gives to government, the structure its provides for the military, and the strict separation it proclaims between religious and secular powers, fits Smith's conception of politics better than any government of his day.  When this remarkable fact is combined with evidence of significant interest in Wealth of Nations among America's political elite--several years before it received much attention elsewhere--it must be concluded that the relative inattention of historians to the influence of Wealth of Nations on the American founding is an oversight badly in need of correction. ["Adam Smith's Reception among the American Founders, 1776-1790," The William and Mary Quarterly, Third Series, Vol 59, No 4 (Oct 2002), 924-924]

I also found it interesting to realize that Adam Smith was especially interested in what was going on in the Colonies and in America.  He apparently thought this was the most likely place for his ideas to take hold.

The Politics Of Friends & Enemies

Hayek:

While in the tribal society the condition of internal peace is the devotion of all members to some common visible purposes, and therefore to the will of somebody who can decide what at any moment these purposes are to be and how they are to be achieved, the Open Society of free men becomes possible only when the individuals are constrained only to obey the abstract rules that demarcate the domain of the means that each is allowed to use for his purposes.  So long as any particular ends, which in a society of any size must always be the ends of some particular persons or group, are regarded as a justification of coercion, there must always arise conflicts between groups with different interests.  Indeed, so long as particular purposes are the foundation of political organization, these whose purposes are different are inevitably enemies; and it is true that in such a society politics necessarily is dominated by the friend-enemy relation.  Rules of just conduct can become the same for all only when particular ends are not regarded as justification for coercion (apart from such special passing circumstances as war, rebellion or natural catastrophes). [The Mirage of Social Justice, p. 143]

Hayek On Social Justice

Here are a few insightful and interesting quotations that I think are relevant to understanding "social justice" from Hayek's The Mirage of Social Justice:

. . . the importance for the functioning of the market order of particular prices or wages, and therefore of the incomes of the different groups and individuals, is not due chiefly to the effects of the prices on all of those who receive them, but to the effects of the prices on those for whom they act as signals to change the direction of their efforts.  Their function is not so much to reward people for what they have done as to tell them what in their own as well as in general interest they ought to do. [pp. 71-72]

It is not good intentions or needs but doing what in fact most benefits others, irrespective of motive, which will secure the best reward. [p. 72] 

The most common attempts to give meaning to the concept of 'social justice' resort to egalitarian considerations and argue that every departure from equality of material benefits enjoyed has to be justified by some recognizable common interest which they differences serve.  This is based on a specious analogy with the situation in which some human agency has to distribute rewards, in which case indeed justice would require that theses reward be determined in accordance with some recognizable rule of general applicability.  But earnings in a market system, though people tend to regard them as rewards, do not serve such a function.  Their rationale (if one may use this term for a role which was not designed but developed because it assisted human endeavour without people understanding how), is rather to indicate to people what they ought to do if the order is to be maintained on which they all rely.  The prices which must be paid in a market economy for different kinds of labour and other factors of production if individual efforts are to match, although they will be affected by effort, diligence, skill, need, etc., cannot conform to any one of these magnitudes; and considerations of justice just do not make sense with respect to the determination of a magnitude which does not depend on anyone's will or desire, but on circumstances which nobody know in their totality. [p. 80] 

I think it is very important to understand that the prices that emerge in the world of voluntary exchange (or, we might say, in The Political Order of a Free People) are signals that can be useful  with respect to choices about future individual human actions as well as future social interactions.  The world of human action is dynamic and evolving, and the prices that emerge with the market process are signals that help people figure out effective ways of adapting to ever changing conditions.  Thus government actions in the name of social justice will amount to introducing force into the political order in a way which necessarily interrupts the function of prices as such signals.

Commerce Clause

Justice Thomas's opinion in the health care case:

I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause.  The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.  Under those precedents, Congress may regulate "economic activity [that] substantially affects interstate commerce."  I adhere to my view that "the very notion of a 'substantial effects' test under the Commerce Clause is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases."  As I have explained, the Court's continued use of that test "has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits."  The Government's unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.

Right on target!

Order & Power

Hayek:

The ultimate justification of the conferment of a power to coerce is that such a power is required if a viable order is to be maintained, and that all have therefore an interest in the existence of such a power.  But this justification does not extend further than the need.  There is clearly no need that anybody, not even the majority, should have power over all the particular actions or things occurring in society. [The Political Order of a Free People, p. 6]

Not Every Legislative Act Is Law

Justice Matthews for the Supreme Court in Hurtado v People of the State of California, 110 US 516, 535-36 (1884):

But it is not to be supposed that these legislative powers are absolute and despotic, and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint.  It is not every act, legislative in form, that is law.  Law is something more than mere will exerted as an act of power.  It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, ‘the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,’ so ‘that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society,’ and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power under the forms of legislation.  Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude.  And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions.  The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.

Conquering Ignorance

Hayek:

In one sense the saying that our civilization rests on the conquest of ignorance is of course a mere platitude.  Yet our very familiarity with it tends to conceal from us what is most important in it: namely that civilization rests on the fact that we all benefit from knowledge which we do not possess.  And one of the ways in which civilization helps us to overcome that limitation on the extent of individual knowledge is by conquering ignorance, not by the acquisition of more knowledge, but by the utilization of knowledge which is and remains widely dispersed among individuals. [Rules and Order, p. 15]

Selection and Society

Hayek:

It is simply not true that our actions owe their effectiveness solely or chiefly to knowledge which we can state in words and which can therefore constitute the explicit premises of a syllogism.  Many of the institutions of society which are indispensable conditions for the successful pursuit of our conscious aims are in fact the result of customs, habits or practices which have been neither invented nor are observed with any such purpose in view.  We live in a society in which we can successfully orientate ourselves, and in which our actions have a good chance of achieving their aims, not only because our fellows are governed by known aims or known connections between means and ends, but because they are also confined by rules whose purposes or origin we often do not know and of whose very existence we are often not aware.   

Man is as much a rule-following animal as a purpose-seeking one.  And he is successful not because he knows why he ought to observe the rules which he does observe, or is even capable of stating all these rules in words, but because his thinking and acting are governed by rules which have by a process of selection been evolved in the society in which he lives, and which are thus the product of the experience of generations. [Rules and Order, p. 11]

Economic History of the World

Here we have the economic history of the world in one picture, as summarized for us by Gregory Clark in A Farewell to Alms:

The basic outline of world economic history is surprisingly simple. . . . Before 1800 income per person--the food, clothing, heat, light, and housing available per head--varied across societies and epochs. . . . the average person in the world in 1800 was no better off than the average person of 100,000 BC.  Indeed in 1800 the bulk of the world's population was poorer than their remote ancestors. . . . Life expectancy was no higher in 1800 than for hunter-gatherers: thirty to thirty-five years. . . . average welfare, if anything, declined from the Stone Age to 1800.  The poor of 1800, those who lived by their unskilled labor alone, would have been better off if transferred to a hunter-gatherer band.  The Industrial Revolution, a mere two hundred years ago, changed forever the possibilities of material consumption.  Incomes per person began to undergo sustained growth in a favored group of countries.  The richest modern economies are now ten to twenty times wealthier than the 1800 average.  Moreover the biggest beneficiary of the Industrial Revolution has so far been the unskilled.  There have been benefits aplenty for the typically wealthy owners of land or capital, and for the educated. But industrialized economies saved their best gifts for the poorest. [Introduction, pp. 1-3]

In other words, for most of human history and in most places in the world, almost all people lived very near subsistence.  But, something happened around 1800 in some places, and the masses of people in those places began to break away from subsistence living and to prosper.

This is the Great Fact of history, as Deirdre McCloskey refers to it in Bourgeois Dignity.  This Great Fact seems to be something most people are unaware of, even among the people who are living in those places in the world where most people live far from subsistence.  It is a fact which seems to be missing from the curricula materials in our schools.  It even seems that this missing fact contributes to many people taking our own prospering for granted.  So, I suppose it should be no surprise that many people seem to believe ideas that are inconsistent with the explanation for why, in some parts of the world, the masses of people began to prosper and continue to prosper today.

What explains the Great Fact of history?  I was reminded of this question earlier this morning while finishing Hayek's The Political Order of a Free People:

However little it may often appear to be true, the social world is governed in the long run by certain moral principles on which the people at large believe.  The only moral principle which has ever made the growth of an advanced civilization possible was the principle of individual freedom, which means that the individual is guided in his decisions by rules of just conduct and not by specific commands.  No principles of collective conduct which bind the individual can exist in a society of free men.  What we have achieved we owe to securing the individuals the chance of creating for themselves a protected domain (their 'property') within which they can use their abilities for their own purposes. [pp. 151-152]

There are lots of specific details we might pay attention to in answering this question, but the simple bottom line seems to me just what Hayek writes here, i.e., individual liberty.  Unfortunately, our system of political economy today seems to move farther and farther away from a society of a free people.

Unlimited Democracy

Hayek:

The true value of democracy is to serve as a sanitary precaution protecting us against an abuse of power.  It enables us to get rid of a government and try to replace it by a better one.  Or, to put it differently, it is the only convention we have yet discovered to make peaceful change possible. . . . In its present unlimited form democracy has today largely lost the capacity of serving as a protection against arbitrary power.  It has ceased to be a safeguard of personal liberty, a restraint on the abuse of governmental power which it was hoped it would prove to be when it was naively believed that, when all power was made subject to democratic control, all the other restraints on government power could be dispensed with.  It has, on the contrary, become the main cause of a progressive and accelerating increase of the power and weight of the administrative machine. . . . As everything tends to become a political issue for which the interference of the coercive powers of government can be invoked, an ever larger part of human activity is diverted from productive into political efforts . . . . In other words, we have under the false name of democracy created a machinery in which not the majority decides, but each member of the majority has to consent to make bribes to get majority support for his own special demands. [The Political Order of a Free People, 137-138]

Political Incentives

Hayek:

People who hope to be re-elected on the basis of what their party during the preceding three or four years has conferred in conspicuous special benefits on their voters are not in the sort of position which will make them pass the kind of general laws which would really be most in the public interest. [The Political Order of a Free People, p. 28]

Roberts & No Reason

Justice Roberts in the health care opinion:

The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding.  There is no reason to depart from that understanding now. [p. 24]

I agree with the first sentence.  Congress does not have the constitutional power to compel commerce, either interstate or intrastate.  This should be thought to be the case regardless of Congressional actions in support or to the contrary.

I find the conceptual view implied by the second sentence to be of concern.  The second sentence seems to me to imply that if Justice Roberts did believe there was a reason to depart from "that understanding," then he might have been willing to make that departure by way of the Court's opinion at hand.  If this is not implied, then it seems to me Justice Roberts would have chosen to leave this sentence out of his opinion.  I wish he had.

So, why is this of concern?  I think the conceptual view implied by this sentence is that, when useful, the Court should change the way the Constitution is understood by way of Court opinions.  Of course, the proper, constitutional way to change the meaning of the Constitution is to amend the Constitution.  Article V specifies the proper way to change the meaning of the Constitution, and the proper way does not include a grant of power to the Court to do so.

The Court should make the constitutional view clear, nor murky as I think this sentence does.  If it seems appropriate to point out there is no reason to depart from the historical understanding of the Constitution now, then I suggest that Justice Roberts should also add: "and if there was reason to change this understanding, then the Court cannot and will not attempt to do that.  If there is such reason, then the constitutional way of changing the meaning of the Constitution is to carry out the requirements found in Article V."

Sadly, for me, it seems that long ago most of the Justices have come to see their constitutional role in the conceptual way implied by this quote.

Hayek on The Value of Science

Hayek in Rules and Order:

There is another related misconception about the aim and power of science which it will be useful also to mention at this point.  This is the belief that science is concerned exclusively with what exists and not with what could be.  But the value of science consists largely in telling us what would happen if some facts were different from what they are.  All the statements of theoretical science have the form of 'if  . . . , then . . .' statements, and they are interesting mainly in so far as the conditions we insert in the 'if' clause are different from those that actually exist. . . . the chief value of all science is to tell us what the consequences would be if conditions were in some respects made different from what they are. . . . Fruitful social science must be very largely a study of what is not: a construction of hypothetical models of possible worlds which might exist if some of the alterable conditions were made different.  We need a scientific theory chiefly to tell us what would be the effects if some conditions were as they have never been before.  All scientific knowledge is knowledge not of particular facts but of hypotheses which have so far withstood systematic attempts at refuting them. (p. 17)

The Court & The Commerce Clause

Reading a Court opinion, as I am doing this morning, I am some times bored, some times entertained, some times nauseated, and some times I'm just baffled.  Consider the following tidbits from Chief Justice Roberts in the health care opinion announced yesterday:

1. The Federal Government "is acknowledged by all to be one of enumerated powers."

2. The enumeration of powers is also a limitation of powers, because "[t]he enumeration presupposes something not enumerated.

3. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. 

4. The Constitution authorizes Congress to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

5. We have recognized, for example, that "[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states," but extends to activities that "have a substantial effect on interstate commerce." 

I'm baffled.

Of course these quotes come from what Justice Roberts has written over several pages.  Quotes 1-3 summarize the meaning of our Constitution of enumerated powers.  Quote 4 is the enumerated power in our Constitution which is known as the commerce clause.  Quote 5 is a good statement of what the Court has come, over the years, to actually think about the Constitution's commerce clause.

I don't understand how quotes 1-4 can fit with quote number 5.  The last quote says that Congress has been granted more power over commerce, specifically it has been granted power to regulate intrastate commerce, than the power we find granted to Congress when we read the words actually written in the Constitution.

I do like the Justice's choice of words "not confined."  I think this is telling.  I think it is inconsistent with quote 2 which says our Congress is a legislature of limited powers.  It seems to me reasonable to suggest that "not confined" is pretty much the opposite in meaning to "a limitation of powers."

It also seems to me reasonable to conclude that over the years the Court has come to change the meaning of the commerce clause.  But, in doing that, the Court has done more.  It seems the Court has turned a constitution for a government of limited powers into a constitution for a government that is "not confined" to expressly enumerated powers.

And, if so, it seems reasonable to conclude that the Court, over the years, has essentially amended the Constitution.  Of course, if you read the Constitution, you will not find that the Court has the constitutional power to amend the Constitution.

Perhaps it is time to put away the Court's commerce clause jurisprudence and end the contortions the Court must go through in presenting it's opinions to convince us that a written constitution for a limited government can also be a constitution for a government that is unconfined?

ACA, Court, & Constitution

I've hardly had time to read any of today's Court opinion, but my sister called earlier and asked if I was surprised.  Well, no surprise on my part.

One reason is that for quite a number of years now many justices seem to be operating on the premise that their job is to encourage every one to believe that it is constitutional for Congress to infringe upon economic liberty.  Of course, there are several ways in which the ACA infringes individual economic liberty.  Perhaps for many justices the details of the infringements don't much matter since the Court's jurisprudence over the past several decades has mostly rested upon the proposition that economic liberty is not one of the liberties protected by the Constitution.  In principle, then, today's opinion is no surprise.  Still, prior to the opinion I had hoped there would be enough justices on this Court who would be hard pressed to concoct a reason for why a constitutionally limited government could force people to participate in interstate commerce so that Congress could then regulate what it forced.  This take me to the second reason I was not surprised.

The second reason I was not surprised is that decades ago members of the Supreme Court came to the opinion that the fact that Congress had the power to tax meant Congress could use the power to tax to do what it otherwise could not constitutionally do.  I don't remember exactly, I think this was an opinion that said Congress could create Social Security even though there was no enumerated constitutional power to do so, but I'm not going to look this up right now.  In any case, without having read the opinion yet, this seems pretty much what this Court opined.  That is, the statute's mandated commerce is not constitutional, but since Congress has the power to tax, Congress can impose a tax on a person who does not purchase health insurance.  Therefore, Congress has the power to impose the mandate after all.  I know, I'm making the whole darn mess sound so circular.  But, that's what it sounds to me like what the Court has decided today.  Congress can do what it doesn't have the power to do.  I suppose this will surprise some, but at least one previous Court has reasoned in just this way.  So, no surprise on my part.

All of this reminds me of perhaps a third reason I should not be surprised, and this is because of one of my economist heroes is Friedrich A. Hayek.  Specifically, Hayek opened Rules and Order with:

When Montesquieu and the framers of the American Constitution articulated the conception of a limiting constitution that had grown up in England, they set a pattern which liberal constitutionalism has followed ever since.  Their chief aim was to provide institutional safeguards of individual freedom; and the device in which they placed their faith was the separation of powers.  In the form in which we know this division of power between legislature, the judiciary, and the administration, it has not achieved what it was meant to achieve.  Governments everywhere have obtained by constitutional means powers which those men had meant to deny them.  The first attempt to secure individual liberty by constitutions has evidently failed.

Constitutionalism means limited government.  But the interpretation given to the traditional formulae of constitutionalism has made it possible to reconcile these with a conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited. . . .

In other words, by 1973 when this was published Hayek was specifically pointing out that our constitutionalism had failed to limit government and protect individual liberty.  So, no surprise when, today, the Court again fails to see in our Constitution the protection of individual economic liberty.  Perhaps this failure of constitutionalism is because so many on the Court over the years have failed to carry out their part in the separation of powers?  That is, for decades now many on the Court seem to have seen their job as saying what Congress does is constitutional because Congress did it.