Ayn Rand, Herbert Spencer, and ObamaCare

As Sasha Volokh notes at The Volokh Conspiracy, during oral arguments yesterday at the 11th Circuit Court of Appeals, Acting Solicitor General Neal Katyal defended the constitutionality of ObamaCare's individual mandate by noting that the law's requirements "may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."

For those who missed the reference, Katyal is almost certainly alluding to Justice Oliver Wendell Holmes' influential dissent in Lochner v. New York (1905), where Holmes attacked the majority for striking down a maximum working hours law for New York bakers as a violation of economic liberty. As Holmes famously quipped, "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics." Social Statics, which was first published in 1851, isn't so well known now, but it certainly would have rung a bell with educated Americans back then. In it, Spencer laid out what he called his Law of Equal Freedom, which held, "Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man." The book also featured a chapter titled, "The Right to Ignore the State."

For Holmes and his Progressive Era allies, Spencer served as a sort of free-market bogeyman, useful for conjuring up scary visions of America descending into an anarcho-capitalist dystopia thanks to the Lochner decision. The reality was of course a little different. In Lochner, the Supreme Court simply struck down one section of New York's 1895 Bakeshop Act while leaving the rest of the law's regulatory structure in place, including regulations stipulating "proper washrooms and closets," the height of ceilings, floor conditions, and "proper drainage, plumbing, and painting." Not exactly the right to ignore the state.

Katyal's invocation of Ayn Rand is a similar piece of misdirection, designed to smear the legal case against the individual mandate as an example of libertarianism gone wild. But let's not forget what the legal challenge is actually about. At the heart of the case is the essential question of whether the Commerce Clause imposes any meaningful limits on congressional power. So while waving around a copy of Atlas Shrugged might scare a few liberals, it doesn't say anything about this fundamental constitutional issue.