Activity, Inactivity, and Libertarianism

My last post discussed the activity/inactivity distinction from the perspective of federalism. But even from the sort of libertarian perspective that I don't personally share, I'm still baffled by why a mandate to enter into a commercial transaction should raise more hackles than other types of legal regulation. If anything, I would think that the distinction would work the other way, at least as long as nobody is being forced actually to use the product being purchased. I don't much like creamed spinach. But I don't think I'd consider my liberties cut to the bone by a law that required me to buy creamed spinach, as long as it didn't force me to eat it. More important, I would certainly far prefer such a law to one that forbid me to buy asparagus, a vegetable I do like.

There are limits to my argument here, of course, particularly when claims of conscience are involved. It would be wrong, for example, to require vegetarians to buy meat, even if they weren't made to eat it. And it would also be wrong to require the Amish to buy health insurance, which is why they and others like them are rightly exempted from the individual mandate. But most libertarian critics of the new health law don't claim that they are conscientiously opposed to health insurance. (Most, I am confident, either have health insurance or plan to buy it when they get older or sicker.) They just object, in principle, to being forced to enter into any economic transaction. And it is that abstract but vehement objection, especially in the face of the thousands of other laws that limit our ability to enter into other economic transactions, that I find odd.

Posted at 12:28 PM in Perry Dane | Permalink

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I see why you find it odd from a policy perspective, given the many other laws in place regarding virtually every transaction.

But, even if you do not agree, can you not even see the concern about having no stopping point to federal Commerce power? The reason the broccoli example has caught on is simple: every Commerce Clause precedent, even in upholding broader power, has repeated the mantra that there is no general federal police power. If that is true, then a limit exists, and it is presumably a justiciable limit. The activity/inactivity line is at least a manageable one. Once it is crossed, what is the line that can NOT be crossed?

It seems to me that many of the mandate's defenders are flirting with, or are openly advocating, the elimination of a justiciable limit on Commerce power. If that's the case, it ought to be said openly and honestly, rather than reciting the "some limit out there" mantra while we plug merrily along.

Along similar lines, I've often heard it said that the anti-mandate forces simply do not accept Wickard and Raich. That may be so. But I haven't seen as much acknowledgement that most pro-mandate forces also opposed Lopez and Morrison, and would like to see those cases overruled.

To me, it's not a matter of "conscience," it's a matter of having ANY limits left on the federal power. I don't see that as radical; I see the blunt elimination of the last vestiges of limits as the radical view.

Posted by: Polly Ester | 02/08/2011 at 02:29 PM