When asked the inconvenient question about the constitutional authority for ObamaCare (especially the mandate to purchase insurance, but much more is constitutionally questionable), the zealots for the administration have been saying that it is unquestionably covered under the Commerce Clause.

In this letter, Don Boudreaux mentions what I think is the definitive work on the proper scope of the Commerce Clause, a law review article by the great constitutional scholar Richard Epstein. Epstein does not hold with the notion that the Commerce Clause was supposed to give Congress the power to control virtually everything.

Here’s the letter:

Editor, Washington Post
1150 15th St., NW
Washington, DC 20071

Dear Editor:

Ruth Marcus is correct that courts will, in fact, find new health-care
commands issued by Washington to be constitutional (“An ‘illegal’
mandate? No.,” Nov. 26). This fact, though, does not mean that such
commands would meet with the approval of those wise skeptics of
concentrated national power who drafted and ratified the Constitution.

Ms. Marcus blithely attempts to justify, as being consistent with the
Constitution’s commerce clause, the 1942 case Wickard v. Filburn – in
which the Supreme Court held that wheat grown exclusively for home
consumption affects interstate commerce and, so, is subject to
regulation by Uncle Sam.

As NYU law professor Richard Epstein asks, “Could anyone say with a
straight face that the consumption of home-grown wheat is ‘commerce
among the several states?'”* (Prof. Epstein, meet Ms. Marcus!)
Indeed, even left-liberal law professor Bruce Ackerman of Yale
acknowledges – in his 1991 book “We the People: Foundations” – that New
Deal Supreme Court rulings are incompatible with the intention of the
Constitution’s drafters.

Sincerely,
Donald J. Boudreaux
Professor of Economics
George Mason University
Fairfax, VA 22030

* Richard A. Epstein, “The Proper Scope of the Commerce Power,” 73
Virginia Law Review, Vol. 73 (1987), p. 1451.