Randy Barnett, Steve Chapman, and no doubt others are actually celebrating last week’s ruling on Obamacare. Why? Because Chief Justice John Roberts wrote in his opinion that the government can’t force us to buy health insurance under the Constitution’s Commerce Clause. Thanks goodness, Barnett, et al. say, that the Court did not allow a dangerous expansion of the commerce power that would permit the government to force us to buy things.
Does that mean the insurance mandate fell? Oh no. The Court found another (and long-established) ground for the mandate: the taxing power. Anything the government can do through the Commerce Clause it can do through taxation.
So is June 28 really to be a great libertarian holiday from now on? Not for me. I’ll be too busy actually promoting individual freedom.
5 comments:
Larken Rose does have some valid points about the ruling here (video), in particular that hopefully more people will see through the "mythological beast called government."
That strikes me as wildly optimistic.
He is correct, however, that consitutionalism and the idea of limited government is a joke. It's every bit as much of a joke as fundamentilist religion.
Agreed. Language is under-determinative. There's always wiggle room in any law or constitution. Reading Roberts's opinion, I was struck by how easily things could have gone the other way. Ginsburg's opinion defending a more expansive Commerce Clause is not off the wall, given her premises about the Constitution's language. As with scripture, you can find whatever you want in the Constitution.
We must guard against reading our own values into the Constitution as though our opponents's values aren't in there too.
As Ten Bears observed in The Outlaw Josey Wales,
«It's sad that governments are chiefed by the double tongues. There is iron in your words of death for all Comanche to see, and so there is iron in your words of life. No signed paper can hold the iron. It must come from men.»
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