"It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution," he wrote in 1819. "This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end."
In this case, the mandate serves a central function. If you compel insurance companies to accept all applicants, you create an incentive for consumers to go uncovered until they get sick, which would either bankrupt insurers or inflate premiums astronomically. Requiring coverage solves that problem by maximizing the size of the insurance pool.
It also eliminates the burden of "free" care that hospitals must provide to "emergency" patients who lack insurance. If taxpayers may be forced to pay for such treatment, the thinking goes, those patients may be forced to get coverage (or else pay a fee for declining).
Fried is not persuaded by the argument that, though the government may regulate activity, regulating inactivity -- the failure to buy medical insurance -- is an unprecedented violation of personal liberty. Mere novelty, he says, is not disqualifying.
Nor do the Constitution's guarantees of personal liberty necessarily protect an individual's right not to do something. In 1905, the Supreme Court unanimously ruled that the state of Massachusetts could fine anyone who refused to get a smallpox vaccination -- a far more intrusive and intimate command than buying insurance.
Besides regarding the mandate as constitutional, Fried sees no defensible way that most of the conservative justices could rule otherwise. Only Clarence Thomas, he says, has written opinions that can support such a narrow interpretation of the commerce clause.
It may seem like an amazing twist that the same law professor who argues so prominently against the constitutionality of the mandate, Barnett, is a former student of Fried at Harvard Law. The professor thinks there is no real irony. "I taught Randy Barnett (SET ITAL) torts (END ITAL)," Fried says.
Constitutional law? That he learned somewhere else.
Steve Chapman blogs daily at newsblogs.chicagotribune.com/steve_chapman. To find out more about Steve Chapman, and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.
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