In many circles it is a prominent mantra that property rights are not human rights. The rights to private property and to trade it are treated by many political thinkers and jurists as far from binding on us. So, for example, the US Supreme Court ruled in 2005, City of New London, CT, v. Kelo, that taking a person's land for development by another private party – who might pay higher taxes on it – is just fine. In the current controversy about whether the government is authorized by the US Constitution to force citizens to purchase health insurance, the right to trade freely – or refrain from doing so – is at issue and defenders of President Obama's position insist that the commerce clause – Article 1, Sec. 8 – of the US Constitution should be so interpreted as to authorize such state coercion.
Then, of course, thousands of regulatory edicts, rules and commands from governments at all levels, are defended by many prominent academics as quite OK. This despite the fact that government regulations are tantamount to the unjust practice of prior restraint – interfering with people's conduct not because it is illegal but because it might be.
The legal history of rationalizing such regulation – what should, in fact, be called regimentation – to authorize such unrelenting intrusiveness and interference in people's lives is quite tortured.
Initially "regulate" was taken to mean "regularize," and sensibly so since the point was to eliminate tariffs and duties between states that had been colonies and as such used to engage in economic warfare. Once united into one country, all this made no sense and also undermined the free flow of commerce and its contribution to prosperity, so it was wise to regularize all peaceful trade.
In time, however, once interventionism became popular and the US Supreme Court started to back this up – in part because it was thought that such intervention was needed to abolish slavery and segregation – the term "regulate" was interpreted to mean "regiment" instead of "regularize." And that is the dominant current reading of the clause, with only a few justices, legal scholars, and jurists critical of it. The recent rulings by a few federal judges invalidating President Obama's health care policy because it orders people to engage in trade with insurance companies has made some use of the older rendition of "to regulate" but opposition to it has been frantic. (The New Republic's Jonathan Chait referred to it as "laughable"!)
How ill conceived it is that government is thought to be authorized to regiment people's economic activities and affairs should be plain to anyone who understands a thing or two about human liberty. But what happened in Tunisia to set off the recent rebellion might illuminate the point a bit. Here is what we find in the pages of THE WEEK (February 19, 2011, p. 48), originally published in The Times/N.I. Syndication:
"[Mohamed Bouazizi, the] young [street] trader had been in trouble with the authorities before….Under the dictatorship of President Ben Ali, permits were required for every form of business activity, often accompanied by a bribe. Bouazizi's family would later claim that he had refused to pay the bribe demanded by the officials….According to other fruit and vegetable pedlars, vendors have a choice when faced with a municipal inspector: they can flee, and leave behind both borrow and merchandise; pay a fine equivalent to several days' earnings, or fork out a bribe. Bouazizi, it seems, was not inclined to do any of these. When [a 45 year old female inspector] Hamdi began seizing his applies, he tried to grab them back, and she slapped him in the face…."
After this event all hell broke loose and escalated and ended, eventually, in the ouster of President Ben Ali's government. So, by any reasonable account what brought about the Tunisian upheaval is the government's intervention with freedom of trade, exactly the kind of conduct by government officials that a good many American jurists, political thinkers and politicians claim is constitutional and certainly not dictatorial. So then all those who try to rationalize such intervention based on a distorted fascistic or socialist ideological reading of the commerce clause, should by all rights defend President Ben Ali's government, just as they are so willing to defend government's commercial regimentation throughout America or, indeed, anywhere else where governments embark upon such policies. And it makes no difference whether the policies have the support of the majority, for the same reason that lynching is not justified even if the whole town supports it.
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