Sunday, November 20, 2011

The Constitution versus Brocco-Tyranny

The mandate to purchase health insurance is the primary legal issue in the case soon to appear before the Supreme Court. Does the Federal government have the authority under the Commerce Clause of the Constitution to make people buy something? What, opponents of the bill frequently ask, is to stop the government from making everyone buy broccoli?

This  argument ignores the fact that state governments already have this power. There has been no constitutional challenge, after all, to the mandate in the Massachusetts health care law. So why is it that, over the last 220 years, not a single state has passed a law requiring citizens to buy broccoli?

The answer can be found in the U.S. Constitution. Not in Article I, Section 8, where the Commerce Clause is found, but in Article IV, Section 4: "The United States shall guarantee to each state a Republican Form of Government." States don't require their citizens to buy broccoli, because they are democracies and voters don't want a broccoli mandate.

This is the ultimate security for citizens in general. It doesn't protect minorities against tyranny by the majority; the Bill of Rights does that. But the intended protection of citizens against tyranny by the government is representative democracy.

Of course, citizens don't want an insurance mandate, either. But they overwhelmingly do want a ban on exclusion by insurance companies for preexisting conditions. It's up to the advocates of a mandate to explain that having one without the other would be like telling people they could wait until after the accident to buy auto insurance.

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