George Will

In 2000, Arizona voters' endorsed an English immersion policy for students for whom English is a second language. Federal courts had issued an injunction against such policies because they conflicted with federal requirements of bilingual education. This year, however, the Supreme Court mandated reconsideration of the injunctions because they affect "areas of core state responsibility."

The court says the constitutional privacy right protects personal "autonomy" regarding "the most intimate and personal choices." The right was enunciated largely at the behest of liberals eager to establish abortion rights. Liberals may think, but the court has never held, that the privacy right protects only doctor-patient transactions pertaining to abortion. David Rivkin and Lee Casey, Justice Department officials under the Reagan and first Bush administrations, ask: If government cannot proscribe or even "unduly burden" -- the court's formulation -- access to abortion, how can government limit other important medical choices?

Democrats' health bills depend on forcing individuals to buy insurance or face severe fines or imprisonment. In 1994, the Congressional Budget Office said forcing individuals to buy insurance would be "an unprecedented form of federal action," adding: "The government has never required people to buy any good or service as a condition of lawful residence in the United States."

This year, the Congressional Research Service delicately said "it is a novel issue whether Congress may use the (Commerce) Clause to require an individual to purchase a good or service." Congress has the constitutional power to "regulate commerce ... among the several states." But a Federalist Society study by Peter Urbanowicz and Dennis Smith judges it perverse to exercise coercion under the Commerce Clause "on an individual who chooses not to undertake a commercial transaction." As Sen. Orrin Hatch, R-Utah, says, there is "a fundamental difference between regulating activities in which individuals choose to engage" -- e.g, drivers can be required to buy auto insurance -- "and requiring such activities" just because an individual exists.

House Majority Leader Steny Hoyer, D-Md., says Congress can tax -- i.e., punish -- people who do not buy insurance because the Constitution empowers Congress to tax for "the general welfare." So, could Congress tax persons who do not exercise or eat their spinach?

When asked whether any compulsory insurance purchases are constitutional, Speaker Nancy Pelosi was genuinely astonished: "Are you serious? Are you serious?" In 1803, in Marbury v. Madison, Chief Justice John Marshall wrote, "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written." He was serious.


George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
 
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