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Supreme Court must rule: Obamacare sets dangerous precedent for freedom

With the Supreme Court set to examine Obama's Affordable Care Act, more than the health-care law hangs in the balance. If the court says the Constitution's Commerce Clause justifies the law's 'individual mandate,' government can essentially make people do whatever it wants.

By David C. Rose / November 16, 2011

St. Louis

After months of debate, several lawsuits, and multiple competing federal court rulings, the Affordable Care Act will have its day in court. That day will determine the nature of freedom in America. 

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On Monday, the US Supreme Court agreed to examine the constitutionality of the health-care law sometimes known as Obamacare. The main question is its “individual mandate,” specifically whether the federal government has constitutional authority to require citizens to purchase health insurance. For that justification, supporters have looked to the Commerce Clause in the Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

But for the Commerce Clause to provide sufficient authority to the federal government to mandate that everyone buy health insurance, choosing not to buy health insurance has to be regarded as “activity.”

The distinction between inactivity and activity is vital for upholding the Constitution’s principle of enumerated government powers and thereby maintaining a free society. It is important that all Americans understand the threat President Obama’s health-care law poses to freedom in the US.

The truer it is that individuals have discretion to act except as specifically prohibited by law and the truer it is that government has discretion to act only as specifically empowered by law, the freer a society is. There is abundant evidence that the Founders understood and believed this.

They also understood that the first premise (individual freedom) is not meaningful if the second premise (limited government) is not also true. This is because government discretion tends to crowd out the discretion of individuals. This is why the doctrine of enumerated powers is so important and why, in free societies, most laws are proscriptive rather than prescriptive in nature.

Property rights theorists call the idea that the owner of property can do as he or she pleases with it except as specifically prohibited by law “residual control.” This acknowledges that ownership is not absolute, that there are limits to discretion even over one’s own property.

But residual control nevertheless captures the essence of ownership. Under this concept, the set of possible actions an owner can take with regard to his property (all actions not currently prohibited by law) is potentially infinite. Who controls that set of possibilities makes all the difference. In free societies, individuals do.

However, if citizens are to live in harmony with others, then freedom, like property ownership, also cannot be absolute. As Oliver Wendell Holmes famously argued, his right to swing his fists needs to end where another individual’s nose begins.


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