In the latest issue of the Texas Review of Law & Politics, the Virginia state officials behind the Fourth Circuit challenge to the individual mandate — AG Ken Cuccinelli, SG Duncan Getchell, and Deputy AG Wesley Russell — have written a law review article on the broader jurisprudential context of their lawsuit: Why the Debate Over the Constitutionality of the Federal Health Care Law is About Much More Than Health Care.
The article contains extensive discussions of the Natural Law tradition, the reasoning behind Lochner, the progressive critiques of Lochner, and the “New Deal settlement.” It also frequently cites our co-blogger David Bernstein’s new book, Rehabilitating Lochner. It then turns to the constitutionality of the individual mandate.
The whole essay is worth reading for those following the mandate debate, but the conclusion is perhaps the most interesting part. A taste from the conclusion:
The public perception is growing that the United States is dangerously in debt and that its social programs – like those in the rest of the economically advanced world – are unsustainable. The votes were not there to finance national health care in the usual way, i.e., via a new or higher tax, so the mandate and penalty were brought in. This violates a foundational bargain of the New Deal era.
The Progressive meliorists had argued that they should be accorded constitutional space in which to make a social experiment, agreeing in turn to be judged by the results. The New Dealers carried the experiment forward. Seventy years later, results are in suggesting that the experiment is living beyond its means. The statist heirs to the experiment say that it cannot and must not be curtailed, so now they claim this new power.
Acknowledging the legitimacy of that newly claimed power would fundamentally alter the relationship between government and the American citizen. For the first time in American history, government would become Hobbes’ Leviathan. . . .
. . .
Who does not believe that if the power is granted it will not be employed to its fullest extent? Who can claim to foresee the unintended consequences that will ensue? Who can say what the effect would be on the very notion of private capital, already so lightly protected under the heading of regulatory takings? For example, nothing in principle would prevent a mandate to purchase a government retirement annuity.
What we do know for sure is that economic rights and non-economic rights are mutually reinforcing. There is a sense in which, as F.A. Hayek said, economic rights are the “prerequisite of all other Freedoms.”Can we recognize a right to commandeer and regiment citizens who are in a state of repose without unacceptable damage to liberty?