Constitutional Confusion

Will Wilkinson’s “The individual mandate: A taxing distinction” is rife with confusion about the Constitution:

…Suppose I sell a novel to a publisher. If the publisher cuts a check to my agent, and my agent cuts a check to me, did I really not do business with the publisher? Of course I did. The middle man is irrelevant to whether or not business has been done between the publisher and I. Likewise, if I cut a check to the government and the government cuts a check to Raytheon, I did business with Raytheon.

…If forcing me to hand a dollar to Raytheon and taking a dollar by force and handing it Raytheon are two materially equivalent ways of making me do business with Raytheon, and they are, then the undisputed power of Congress to tax and spend was a power to force me to do business with private companies all along.

One principled libertarian line on this question is that government has the power to tax only for the purpose of spending on the provision of those public goods, such as the common defence, which voluntary exchange on the free market cannot be relied on to provide…. A ruling to the effect that government may not force citizens to do business with private entities could be useful to a libertarian legal activist precisely because there really is no sound distinction between mediated and unmediated transactions….

The “libertarian line,” principled or not, is irrelevant to the meaning of the Constitution, which is not a libertarian document but a political one. The issue at hand — the constitutionality of the individual mandate — cannot be resolved by invoking libertarian principles; it must be resolved by invoking constitutional principles.

The Constitution gives the federal government the power to raise and employ armed forces in the defense of the nation. The taxing power is used legitimately (in constitutional terms) when it enables the exercise of that power. When Wilkinson is taxed to help defray the cost of national defense, he is not being forced to do business with Raytheon. He is being forced (legitimately, under the Constitution) to support the national defense, which happens to involve purchases from Raytheon (among many things).

One need not get into the messy business of defining public goods to find fault with the individual mandate, as a constitutional matter.  The mandate is constitutionally wrong because there is no constitutional writ for such a thing. Obamacare, of which the mandate is an integral element, is nothing less than an attempt on the part of the federal government to commandeer and direct all economic activity that is conceivably related to a fictional entity called the “market for health care.” The mandate is an attempt to further that scheme by forcing individuals to engage in commerce — a power that can be read into the Constitution only by those who would prefer to have a federal government of unlimited power.

Finally, it is hogwash to say that “there really is no sound distinction between mediated and unmediated transactions.” I am not “doing business with Raytheon” because some of my tax dollars go to Raytheon. I am doing business with the federal government as a (constitutionally legitimate) provider of national defense. But if the federal government forces me to buy health insurance (or pay a hefty penalty), I am doing business with an insurance company, not with the federal government.

Related posts:
Unintended Irony from a Few Framers
Freedom of Contract and the Rise of Judicial Tyranny
Social Security Is Unconstitutional
The Constitution in Exile
What Is the Living Constitution?
Blame It on the Commerce Clause
The Slippery Slope of Constitutional Revisionism
The Real Constitution and Civil Disobedience
The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Obamacare: Neither Necessary Nor Proper

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