The country expects to hear from the Supreme Court this week. The Court will tell us whether we citizens, acting through our representatives, can force our fellow citizens to buy something that is both expensive and consequential. Affordable Care Act proponents point to many precedents that give government power to regulate the purchase of health insurance under the Constitution’s commerce clause. They may feel some frustration that other people don’t see the Constitution the way they do. At the end of discussions about health care, however, it is not government’s powers we are talking about. It is our powers.
No theory of government or constitutional article gives the majority in a republic power to mind a minority’s business. A 51% majority can vote a tax over objections from 49% because a tax is public business. How a citizen maintains bodily health – or neglects it – is a private decision, or at least ought to be. No citizen becomes subject to mandates from other citizens just because the people who want to impose the mandate insist the matter is no longer private. You cannot use the commerce clause to disguise or justify out and out intrusiveness.
Put another way, you cannot try to transform a private matter into a public one by insisting that we’ll all be better off if we make the matter public. By that reasoning, you could say we would all be better off if each couple or each family has only one child. We have seen that sort of public invasion of family life play out in China. How many people outside China think the Communist Party’s one-child policy is a legitimate use of social or governmental authority? Practically no one inside China thinks it is.
We cannot influence the justices’ decision at this point. Let’s hope it’s a good one: well reasoned, internally consistent, and consistent with our political traditions. The ACA is not plainly constitutional, nor is it plainly unconstitutional. Nowhere does the Constitution grant Congress power to mandate any kind of purchase by a private citizen. Nowhere does the Constitution explicitly prohibit Congress from imposing such a mandate. The Constitution’s words do not give firm guidance on this question.
To decide the case, therefore, the Court has to draw from both constitutional and extra-constitutional sources. Based on the justices’ questions and tone when the Court heard arguments on the case, many people among both Democrats and Republicans expect the Court to find the Affordable Care Act unconstitutional. Constitutional reasoning supplies a legal framework, but we know that a decision like this one relies on other types of reasoning. Perhaps more accurate would be to hope that the Court finds the Act unsustainable.
We should close with two thoughts. First, thank you to the people who brought this case before the Supreme Court. Preparation of the arguments required hard work, perseverance, and some willingness to weather criticism and scorn. However difficult the job, this legislation needs to be challenged. Thank you for seeing the job through.
Second, defeat of this law, if that is what the Court decides, could mean a revolution in our attitudes toward public and private goods. We are due for a movement toward more freedom in our country. The Tea Party, many in the Occupy movement, political independents, liberal minded thinkers among Republicans and Democrats: all would like to see the national government operate under effective constraints that serve to limit its powers over matters we have long thought private. This desire comes from recognition that without constraints, government’s instrusiveness forces people into modes of life that are less and less free. We ought to celebrate if the Supreme Court finds against the ACA, but we should also make the decision something more than a one-off victory.
Momentum in politics, as in warfare or in any kind of competition, does matter. Let us combine the country’s vigorous opposition to the Affordable Care Act with other grievances about other intrusions, to make a robust force that strikes down freedom-limiting regulation. President Obama, before his election, repeated three words to rally his followers: “Yes we can.” Let’s encourage ourselves and all who want to defeat Obama’s methods and vision with a similar thought. If we plan together and collaborate effectively, we can push forward with other projects, just as soldiers roll forward in a body after they first breach a key battlement.
The Jeffersonian 
Excellent points. But this isn’t just about mandating some nebulous good (like ‘health’). Obamacare mandates us to buy the most expensive care available as ofered by the insurers. It is like requiring everybody to pay thousands each year to expensive mall department stores (but then we get free clothes) instead of being able to buy at discount stores. Americans would revolt over that, but they fall for ‘health care’ because they think ‘somebody else’ (their employer) is paying. I negotiate with my dentist over the level and cost of my care and I get great service at reasonable cost. Ditto with my auto mechanic. Also with the vendors I use for business.