What Does the Commerce Clause Have to do with your Sex Life?

Any day now, the Supreme Court will release its ruling on the individual mandate in President Obama’s healthcare reform. It will inspire pontification about how far the government can “interfere” in Americans’ lives under the constitutional power of the commerce clause.


Apropos that point, I read this comment on a Washington Post op ed: “What is it with Republicans and making laws about sexual issues? Republicans claim they support smaller government and that government invades their private lives when it makes laws regarding commerce, yet when it comes to the bedroom the Republican party is right there willing to tell citizens what and what not to do. It is very odd that Republicans do not see the conflict here.”

It’s a good question.

My first book, Consent, a scholarly book, attempted to answer this question, 14 years ago:  How can modern conservatives be comfortable legislating and regulating personal, private relationships while championing smaller, less intrusive federal government?

Conservatives’ views on sexual politics aren’t actually a contradiction. Nor is it a humdrum case of hypocritically regulating the bedroom but not the boardroom.

Both social conservatives and progressives believe that there are relationships in which American citizens must be as free as possible from regulation or interference by the government. This is the “right to be let alone.” It’s a principle of individual liberty as non-interference from the government that both liberals and conservatives share— and that animates the Supreme Court debate about the individual mandate.

It’s just that conservatives and liberals confer that right to be let alone, ideally, on different classes of relationships.

Modern liberals close the door on federal interference at the bedroom. Americans must be free in their sexual, personal, marital, reproductive, associational, and intimate relations. And these relationships, above all others, must be shielded from federal regulation, interference, or meddling.

Conservatives close the door on interference at the boardroom, so to speak, instead. They think the deepest freedoms from interference apply to market relations, commercial exchanges, labor contracts, business, and commerce.

Ron Paul is the most extreme, or “pure,” advocate of this view of American freedom. His view most closely resembles a revival of a classic, 19th century “laissez faire” philosophy of the free market.

This laissez faire view in the 1800s was a vigilant one. Courts held to the buyer beware and “one man’s death does not diminish me” view that injuries and harms for one individual in labor relations didn’t affect others, and shouldn’t be regulated against (the controversial 1905 Lochner ruling reinforced freedom of contract in economic relations, but was challenged as the 1900s progressed).

Basic facets of the modern state—minimum wage laws, workday restrictions, child labor restrictions, safety regulations or protections against contaminated food or unsafe products created in the ideally self-correcting swirl of free markets, to say nothing of federal income tax--were construed as infringements on the most hallowed contractual freedoms on the market.

By the 1910s, criticism of the market’s excesses had grown. The Progressive movement advocated for a more active, regulatory role for the federal government in economic life. Did it really constitute “freedom” to be exploited into wretchedness in the sale of your labor, or sickened by profitable but unsafe products?

Just as the idea of non-interference in the markets was trimmed and the commerce clause of the Constitution used to justify greater federal regulation and legislative reach, a stronger concept of individual liberty emerged around the “right to privacy” in personal, sexual, intimate, marital, and reproductive relationships.

The right to privacy in these intimate relationships is a linchpin of modern liberalism. It’s developed in key 20th-century Supreme Court rulings such as Griswald and Roe, but has deeper cultural precursors.

The trend up until the Rehnquist court was toward lower standards of review for restrictions on economic liberty, but stricter standards of review for restrictions on personal (sexual, reproductive, and marital) liberties.

What looks like a contradiction—how can conservatives meddle in the bedroom and not the boardroom, and vice versa for liberals—is more like a centuries-long historical oscillation between an emphasis on economic liberty or on sexual/personal liberty.

It may be ideologically distasteful for conservatives to contemplate the federal government mandating health insurance— “forcing” them to do something--but they don’t have those same feelings about anti-abortion legislation.

It may be ideologically distasteful for modern liberals to contemplate a world where reproductive meddling occurs, but they don’t have those feelings about the healthcare mandate.

Neither “side” in the culture war--up to this point--has envisioned the liberty of government non-interference as an idea that should be applied universally across all classes of relationships.

However, a group of younger libertarians today holds to the view that any kind of government interference, whether in sexual or economic relations, is equally distasteful. Not only would they reject the health care mandate, they’d reject anti-abortion and anti-same sex marriage legislation as well. We’ll see what happens.

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