The Official Blog Of Edward Cline

Freedom vs. Compulsion: Bramwell vs. Roberts

Reading
through the 1,092-page Oxford Book of
English Prose
as a respite from current events (published in 1925, it is
little less  than an inch thick, and
probably weighs less than two ounces), I came upon an essay by the Tory
lexicographer, Samuel Johnson, and was struck by one of his comments. Writing in
1760, five years after completing his Dictionary
of the English Language
, about terminating his critical magazine, ‘The
Idler
,’ he noted:
Value
is more frequently raised by scarcity than by use. That which lay neglected
when it was common, rises in estimation as its quantity becomes less. We seldom
learn the true want of what we have till it is discovered that we can have no
more.*
What
struck me was the appropriateness of Johnson’s comment. Here in the U.S. we are
losing our liberties by the dozen with each passing week. For over a century, a
succession of administrations and Congresses have been carving them out and
tossing them into a black hole. Most Americans today, having been raised in a
mixed, regulated, welfare state economy, cannot imagine, much less claim to
miss what they never knew: true, laissez-faire
capitalism and a government that did not habitually prey on their freedom,
wealth, and happiness. Those who took their liberties for granted are today now
realizing the value of what is “no more.”
Further
on in the pocket-size volume, I encountered a startling legal opinion,
delivered by British Lord Justice
Bowen
(Charles Synge Christopher) in the Court of Appeals in 1889 about a
suit brought by a steamship company against an “association,”
claiming that the association engaged in a “conspiracy to injure” and
so was guilty of “restraint of trade.”**
We
were told that competition ceases to be the lawful exercise of trade, and so to
be a lawful excuse for what will harm another, if carried to a length which is
not fair or reasonable. The offering of reduced rates by the defendants [McGregor
& Gow.] in the present case is said to have been “unfair.” This
seems to assume that, apart from fraud, intimidation, molestation, or
obstruction, of some other person right in
rem
or in personam, there is some
nature standard of “fairness” or “reasonableness” (to be
determined by the internal consciousness of judges and juries) beyond which
competition ought not in law to go. There seems to be no authority, I think, with
submission, that there is no sufficient reason for such a proposition.
It
would impose a novel fetter upon trade. The defendants, we are told by the
plaintiffs’ counsel, might lawfully lower rates provided they did not lower
them beyond a “fair freight,” whatever
that may mean
. But where is it established that there is any such
restriction upon commerce? And what is to be the definition of a “fair
freight”? It is said that it ought to be a normal rate of freight, such as
is reasonably remunerative to the shipowner. But over what period of time is
the average of this reasonable remunerativeness to be calculated?….[U]ntil
the present argument at the bar it may be doubted whether shipowners or
merchants were ever deemed to be bound by law to conform to some imaginary
“normal” standard of freights or prices…To attempt to limit English
competition in this way would probably be as hopeless an endeavour as the
experiment of King Canute. Law Reports.
[Punctuation Americanized, Italics
mine]
Justice
Bowen found for McGregor & Gow and dismissed Mogul Steamship’s suit. In
short, he wrote that because force in
any form had not been employed by the defendants against the Mogul Steamship
Company, Mogul had no lawful grounds to claim “economic injury” or a
plot by McGregor  & Gow to
consciously injure Mogul. Note that he questions whether definitions of fair and reasonable would even be valid, possible or admissible, and that if
any judge attempted to adjudicate such a case based on those terms, it would be
wholly subjective and not objective (and likely open to appeal by McGregor
& Gow.).
There
were no American opinions excerpted in the volume that I could compare with
Bowen’s. But, intrigued by the case and Bowen’s reasoning, I investigated Mogul
Steamship vs. McGregor et al., and
found that Bowen’s opinion was upheld three years later, in 1892, by Lord
Bramwell
(George William Wilshere
Bramwell
) in the House of Lords (acting as a kind of Supreme Court at
that time), when the same case wended its way there on appeal by Mogul
Steamship, with Bramwell echoing much the same logic and language as Bowen’s.
Bramwell
said:
My
Lords, the plaintiffs in this case do not
complain of any trespass, violence, force, fraud, or breach of contract, nor of
any direct tort or violation of any right of the plaintiffs
, like the case
of firing to frighten birds from a decoy; nor of any act, the ultimate object
of which was to injure the plaintiffs, having its origin in malice or ill-will
to them. The plaintiffs admit that
materially and morally they have been at liberty to do their best for
themselves without any impediment by the defendants
. But they say that the
defendants have entered into an agreement in restraint of trade; an agreement,
therefore, unlawful; an agreement, therefore, indictable, punishable; that the
defendants have acted in conformity with that unlawful agreement, and thereby
caused damage to the plaintiffs in respect of which they are entitled to bring,
and bring this action….
It is to be remembered that it is for the
plaintiffs to make out the case that the defendants have committed an indictable
offence, not for the defendants to disprove it.
There needs no argument to prove the negative. There are some
observations to be made. It is admitted that there may be fair competition in
trade, that two may offer to join and compete against a third. If so, what is the definition of “fair
competition”?
What is unfair that is neither forcible nor fraudulent? It
does seem strange that to enforce freedom of trade, of action, the law should
punish those who make a perfectly honest agreement with a belief that it is
fairly required for their protection….[Italics
mine]
Steady
the Buffs. Bramwell saw no evidence of force being used against Mogul
Steamship, nor any “conspiracy” to obstruct it from engaging in any
trade whatsoever, and dismissed the hypothetical question of a
“conspiracy” that would prevent the hypothetically
“injured” from engaging in trade.
Further,
he questioned the validity of a charge that the defendants, McGregor & Gow,
had acted against “public policy,” which ostensively prohibited
“restraint of trade.” He quotes another justice:      
“Certain
kinds of contracts have been held void at Common Law on the ground of public
policy; a branch of the law, however, which certainly should not be extended, as judges are more to be trusted as interpreters
of the law than as expounders of what is called public policy
.” I
think the present case is an illustration of the wisdom of these remarks. [Italics mine]
At
the time, the idea of “public policy” had not yet ossified in
political thinking. Today, “public policy” is a club used to beat the
citizenry into submission and obedience. “Public policy” – that is,
government policy – covers a virtually infinite number of actions and things,
from smoking to consumer prices to stock trading to medical care to
immigration. More on that issue later. Returning to the question at hand,
Bramwell wrote:
See
in this case the judgment of Lord Esher, that the plaintiffs might recover for
“damages at large for future years.” Would a shipowner who had intended to send
his ship to Shanghai, but desisted owing to the defendants’ agreement, and on
being told by them they would deal with him as they had with the plaintiffs, be
entitled to maintain an action against the defendants? Why not? If yes, why not
every shipowner who could say he had a ship fit for the trade, but was deterred
from using it?….
The
Master of the Rolls cites Sir William Erle, that “a combination to violate a
private right in which the public has a sufficient interest is a crime, such
violation being an actionable wrong.” True. Sir William Erle means that where
the violation of a private right is an actionable wrong, a combination to
violate it, if the public has a sufficient interest, is a crime. But in this
case, I hold that there is no private
right violated
. His Lordship further says: “If one goes beyond the exercise
of the course of trade, and does an act beyond what is the course of trade, in
order—that is to say, with intent—to molest the other’s free course of trade,
he is not exercising his own freedom of a course of trade, he is not acting in
but beyond the course of trade, and then it follows that his act is an unlawful
obstruction of the other’s right to a free course of trade, and if such
obstruction causes damage to the other he is entitled to maintain an action for
the wrong.” I may be permitted to say that this is not very plain. I think
it means that it is not in the course of trade for one trader to do acts the
motive of which is to damage the trade of another. Whether I should agree
depends on the meaning to be put on “course of trade” and “molest.” [Italics mine]
Where,
Bramwell is asking, is the initiation of force? Where is the
“molestation”?And, the whole notion of projected or
“potential” losses incurred by someone not engaging in trade because of an external force – in this
instance, a competitor’s actions – was to Bramwell utterly inadmissible as
grounds for charging McGregor & Gow with “restraining” trade. “Potential,”
reasoned Bramwell, was not the “actual.”
But
it is clear that the Master of the Rolls means conduct which would give a cause
of action against an individual. He cites Sir William Erle in support of his
proposition, who clearly is speaking of acts which would be actionable in an
individual, and there is no such act here. The Master of the Rolls says the
lowering of the freight far beyond a lowering for any purpose of trade was not
an act done in the exercise of their own free right of trade, but for the
purpose of interfering with the plaintiffs’ right to a free course of trade;
therefore a wrongful act as against the plaintiffs’ right; and as injury to the
plaintiffs followed, they had a right of action.
I cannot agree.
If there were two shopkeepers in a village and one sold an article at cost
price, not for profit therefore, but to attract customers or cause his rival to
leave off selling the article only, it could not be said he was liable to an
action. I cannot think that the defendants did more than they had a legal right
to do. I adopt the vigorous language and opinion of Fry L.J.: “To draw a line between fair and unfair
competition, between what is reasonable and unreasonable, passes the power of
the courts
.”  It is a strong
thing for the plaintiffs to complain of the very practices they wished to share
in, and once did. [Italics mine]
Briefly,
Bramwell as much as said that Mogul Steamship claimed to be able to somehow get
inside the heads of McGregor & Gow. and see a conscious conspiracy to
“injure” Mogul Steamship, when in fact McGregor & Gow. were
simply acting freely in the course of regular business, with no intention of
“molesting” Mogul or obstructing its ability to engage in trade. It
had no ulterior motive. Clearly, neither Bowen nor Bramwell subscribed to the notion
of “platonic competition,” and doubtless would have regarded the
notion of “hate crimes” beyond the pale of rationality. And,
doubtless, neither of them would be allowed to sit on any British bench, nor on
any in the U.S.
This
brings us to Supreme Court Chief Justice John Roberts’ bizarre opinion on the
legality of the Patient Protection and Affordable Care
Act
of March 2010, or ObamaCare, and the question of “public
policy.”
President
Barack Obama’s “public policy” was to impose socialized medicine on
the country by compelling Americans to buy health insurance (the
“individual mandate”). To this end he had the help of much of
Congress and numerous “public policy” advocates in the private
sector. The official “launch” of ObamaCare on October 1st
was fraught with too many technical
issue
s to recount here. This is aside from the evil of the legislation and
the exponentially catastrophic consequences of its implementation, among which
will be the degradation of medical care in this country, a reduction in medical
personnel who opt out of the system or simply retire, and the politicization of
one’s choices and life.
There
are lawsuits
challenging the legality of ObamaCare pending or already in the courts. Earlier
court
decisions on the unconstitutionality of Obamcare have been ignored or
overturned or are winding
their way up
the judicial ladder to the Supreme Court, in addition to individual
state
actions to limit or oppose the ACA. The major current challenge is Halbig v.
Sebelius
, which has not yet reached the Supreme Court. It challenges the
power of the federal government to cajole states through federal
subsidies
to establish “insurance
exchanges
,” and also the power of the Internal Revenue Service to act
as the primary “enforcer” of the individual mandate. 
Unfortunately,
no lawsuit against ObamaCare is grounded on any moral argument, to wit, that
compelling individuals to buy a product is plain-language force and a violation
of his freedom of association and his volition, that is, to engage in trade and
to choose or not to engage in that trade. Instead, most lawsuits are focusing
on technical issues of policy agendas and the constitutionality of those technical
issues. For example, the British
Daily Mail
, in its October 22nd article, “Bombshell:
Federal judge suddenly green-lights lawsuit that could stop ObamaCare in its
tracks,” wrote, in highlighting the fact that the IRS is summarily violating
provisions of the ACA that forbid the government from offering premium
subsidies to states that refuse to establish exchanges:
The
Affordable Care Act forbids the federal government from enforcing the law in
any state that opted out of setting up its own health care exchange, according
to a group of small businesses whose lawsuit got a key hearing Monday in
federal court.
The
Obama administration, according to their lawsuit, has ignored that language in
the law, enforcing all of its provisions even in states where the federal
government is operating the insurance marketplaces on the error-plagued
Healthcare.gov website.
Thirty-six
states chose not to set up their exchanges, a move that effectively froze
Washington, D.C. out of the authority to pay subsidies and other pot-sweeteners
to convince citizens in those states to buy medical insurance.
But
the IRS overstepped its authority by paying subsidies in those states anyway,
say the businesses and their lawyers.
The
one court decision that left everyone breathless in anticipation, and then
jaw-dropping stunned when it was delivered, was the Supreme Court decision
that both upheld and struck down the constitutionality
of ObamaCare. In the 5-4 decision of June 28th, 2012, Chief Justice
John Roberts wrote the majority
opinion
in the matter of the National
Federation of Business v. Sebelius Secretary of Health and Human Services et
al.
[sic, should be National Federation
of Independent Business], opining, among other things:
CHIEF
JUSTICE ROBERTS concluded in Part III-B that the individual mandate must be
construed as imposing a tax on those who do not have health insurance, if such
a construction is reasonable. The most straightforward reading of the
individual mandate is that it commands
individuals to purchase insurance
. But, for the reasons explained, the
Commerce Clause does not give Congress that power. It is therefore necessary to
turn to the Government’s alternative argument: that the mandate may be upheld
as within Congress’s power to “lay and collect Taxes.” Art. I, §8,
cl. 1. [Italics mine]
Much
was made in the news media and by critics of the notion of interpreting the
Commerce Clause as a means of forcing individuals to engage in trade. Force, to these interpreters, means regulation – which is not what the
Founders meant. 
On
one hand, Roberts invalidated Congress’s power to force individuals to purchase
health insurance. On the other hand, he upheld the power to tax as a means of
compelling individuals to purchase the insurance under penalty of a tax. But,
more of Roberts’ “reasoning”:
CHIEF
JUSTICE ROBERTS concluded in Part III-A that the individual mandate is not a
valid exercise of Congress’s power under the Commerce Clause and the Necessary
and Proper Clause. Pp. 16-30.(a) The Constitution grants Congress the power to “regulate
Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce
presupposes the existence of commercial activity to be regulated. This Court’s
precedent reflects this understanding: As expansive as this Court’s cases
construing the scope of the commerce power have been, they uniformly describe
the power as reaching “activity.” E.g.,
United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however,
does not regulate existing commercial activity. It instead compels individuals
to become active in commerce by purchasing a product, on the ground that their
failure to do so affects interstate commerce.
The
only way failure to purchase health insurance would “affect interstate
commerce” would be to reflect an absence of demand for a ridiculously
overpriced commodity. Roberts seems to catch his breath and backtracks to make
sure everyone understands his “reasoning” and reservations.
The
Framers knew the difference between doing something and doing nothing. They
gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle
that the Federal Government is a government of limited and enumerated powers.
The individual mandate thus cannot be sustained under Congress’s power to “regulate
Commerce.”
 This should be news to anyone concerned that
the current Federal Government is not now one of limited and enumerated powers,
and that most presidents and Congress for over a century have blithely ignored
the distinction established by the Framers. Let’s look at his conclusion again.
After dealing with the Necessary and Proper Clause, Roberts concludes:
CHIEF
JUSTICE ROBERTS concluded in Part III-B that the individual mandate must be
construed as imposing a tax on those who do not have health insurance, if such
a construction is reasonable. The most straightforward reading of the
individual mandate is that it commands individuals to purchase insurance. But,
for the reasons explained, the Commerce Clause does not give Congress that
power. It is therefore necessary to turn to the Government’s alternative
argument: that the mandate may be upheld as within Congress’s power to “lay
and collect Taxes.” Art. I, §8, cl. 1.
Let
us not quibble. Whether one calls it a tax, or a penalty, or a fine, it is
legalized extortion.
After
the decision, President Obama
proclaimed
, “In this country, an accident or illness should not cause
financial ruin for anyone.” But now that many Americans have seen what
“is in it,” all they see is financial ruin.
The
insurance companies that stand to “profit” most from the compulsory
element of ObamaCare were listed by Forbes Magazine in its October 14th
article, “
Obamacare’s Website Is Crashing Because
It Doesn’t Want You To Know How Costly Its Plans Are”:
The
biggest publicly-traded players in Obamacare’s health insurance exchanges are
Aetna (NYSE:AET), Humana (NYSE:HUM), Cigna (NYSE:CI), Molina (NYSE:MOH), WellPoint (NYSE:WLP), and Centene (NYSE:CNC), in order of the percentage of
uninsured, exchange-eligible Americans for whom their plans are available.
For
the longest time, ever since the federal government began persecuting large
companies, accusing them of taking advantage of “captive markets” and
enacting the Sherman
Antitrust Act
of 1890 and the Clayton
Antitrust Act
of 1914 (Pub.L. 63–212, 38 Stat. 730),
enacted October 15, 1914, by seeking to prevent anticompetitive practices
considered harmful to consumers (monopolies, cartels, and trusts). The Clayton
Act specified particular prohibited conduct, the three-level enforcement
scheme, the exemptions, and the remedial measures.
The
U.S. Supreme Court has played a central role in establishing controls over
success and legitimate business activities. The Court’s role in sanctioning
ObamaCare is just the latest episode.
What
accounts for the difference between the honest, clear reasoning of British
justices Bowen and Bramwell, and the evasive, pretzel-like rationalizations of
our Chief Justice John Roberts? There is speculation that Roberts was pressured
to cast the swing vote in favor of upholding ObamaCare. That is mere
speculation, although, given the conduct of the Obama administration these five
long, ghastly years, that is not too incredible an hypothesis. After all, the
ACA is supposed to be the crowning achievement Obama’s years in office. No
level would be too low for him to stoop to resort to arm-twisting a Chief
Justice.
Another
explanation would be the corrosive miasma of big government and the welfare
state, a corruption that encourages fabulous interpretations of the
Constitution and its original intent and language. Still another explanation
would be purblind fear of opposing an imaginary national consensus, or defying a
reckless, ambitious politician in the White House.
Perhaps
it was just a reluctance to challenge the philosophy that Americans are charges
or wards of the state, with no guaranteed rights but the “right” or
obligation to serve the public.
Whatever
the explanation for Roberts’ action, he missed an opportunity to make it his
finest hour, and chose to make a decision that will live in infamy.
*Samuel Johnson, “The Last ‘Idler’,” in The Oxford Book of
English Prose
, ed. Sir Arthur Quiller-Couch. London: Oxford, Clarendon
Press, 1925. p. 400.
**Ibid. Lord Justice Bowen, “Mogul Steamship Company v. McGregor
Gow & Co.: Judgment,” pp. 853-854.

Previous

The Ghouls of Grammatical Egalitarianism

Next

Our Military: Obama’s Janissaries?

1 Comment

  1. Edward Cline

    To C.L. Gammon re the radio interview: Here is a point I wish we'd had time to cover during the program. It's difficult for me to squeeze in so much information on the spur of the moment in so short a time slot, as I tried to do during the show.

    While antitrust laws in this country (beginning with the Sherman Antitrust Law of 1890) were supposed to combat alleged "monopolies" that somehow created "captive markets," Obamacare would create an actual captive market in which no one (except politicians) would have the choice but to participate. It's participate, or be fined. Some big insurance companies were behind getting the ACA introduced in Congress and passed for the specific purpose of creating a captive market. No big corporation in the 19th century had that power. And if you read my Bramwell vs. Roberts Rule of Reason column on the bizarre "reasoning" of Roberts when he upheld Obamacare, you'll see what I mean. The Commerce Clause gives the federal government the power to "regulate" commerce (between the states), but doesn't say that Congress had the power to force anyone to participate in that commerce. (The Founders had a different conception of "regulate," which was to bring order out of taxing wars between the states.). Perhaps we can discuss this the next time I'm on your show, or you can discuss it yourself. In short, the government is opposed to "monopolies" except for its own actual monopolies (e.g., the Postal Service).

Leave a Reply

Powered by WordPress & Theme by Anders Norén