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Salus populi suprema lex esto

August 7, 2010

Recently I came across James Taranto’s interview of Randy Barnett about health care reform.

A Commandeering of the People

Is ObamaCare constitutional? “If you ask any constitutional law professor whether Congress can do something, the answer is always yes,” says Randy Barnett. But Mr. Barnett, who teaches legal theory at Georgetown, isn’t just any law professor. A self-described “radical libertarian,” he is the author of a 2004 book, “Restoring the Lost Constitution,” that argues for a fundamentally new approach to jurisprudence. […]

“If you’re talking about the regulation of economic activity, the presumption of constitutionality is for all practical purposes irrebuttable,” Mr. Barnett says. […]

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”

I think Mr. Barnett points puts his finger on the point. The health care bill takes us another step closer to the Everything That’s Not Forbidden Is Compulsory state of affairs. Faced with the prospect of increasing health care costs, the solution proposed is for citizens to surrender a little more autonomy and accept more limits on their choices.


So I was very pleased to learn that Missouri voters had approved Proposition C this week.

Prop C passes overwhelmingly

ST. LOUIS • Missouri voters on Tuesday overwhelmingly rejected a federal mandate to purchase health insurance, rebuking President Barack Obama’s administration and giving Republicans their first political victory in a national campaign to overturn the controversial health care law passed by Congress in March.

“The citizens of the Show-Me State don’t want Washington involved in their health care decisions,” said Sen. Jane Cunningham, R-Chesterfield, one of the sponsors of the legislation that put Proposition C on the August ballot. She credited a grass-roots campaign involving Tea Party and patriot groups with building support for the anti-Washington proposition.”

The overwhelming margin the proposition passed by was good to see. I don’t know if it means much politically, though. The White House says it has ‘no legal significance’.

I think Senator Cunningham is right that many – maybe a majority of – Missourians don’t want health care that’s managed by bureaucracy. But she overstates the result quite a bit since Proposition C only addressed the individual mandate part of health care reform act and not whether the bill as a whole would apply in Missouri. Further, the Proposition just expresses the Sense of the House. It doesn’t create a new law nor does it oblige the Missouri General Assembly to create such a law.

There was very little electioneering on Proposition C. I didn’t hear anyone advocating against it (or for it). I only saw a few small signs urging Yes votes and those didn’t appear until Election Day. I take this to mean that those who would normally be against it were ignoring it. Nobody was mobilizing the union members to canvas for its defeat, for example. (Such mobilization is common in St. Louis during many elections.)

And there’s already speculation that the Federal government will sue the state to block any implementation of this proposition; that is, to block in the courts any Missouri law which overrides the individual mandate provision.

Nonetheless I thought it was great news that there’s a large number of people here who resent the overbearing power of the Federal government.

Maybe the Tenth Amendment will get a little more respect now. (See also Ninth and Tenth Amendment Society.)

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