Secondary Generalist
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Secondary Generalist is a microblog maintained by me, Mike Russell. Mostly pictures of my dog or stuff about Cardinals baseball. More serious stuff at

David Dow took a break from writing books in favor of judicial activism to complain about judicial activism. I just want to comment on this thing that keeps coming up:

First, Congress’s authority in passing the law rests on an elementary syllogism: You don’t have to drive, but if you do, the government can make you buy insurance. The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do). That logic is obviously satisfied in the health-care context. You are going to use medical care, so the government can make you buy insurance in order to make sure you can pay for it. Liberty, like every other human and constitutional right, is not absolute. Under some circumstances, it can be regulated.

(a) I can choose not to drive, and therefore choose not to purchase car insurance. ACA requires me to purchase insurance or be considered a criminal, regardless of my personal choices. It’s not the same at all.

(b) I am required to purchase liability insurance, to protect the person I harm in an accident, not myself, or my property. Health insurance covers me, not people I may harm through my actions. It’s not the same at all.

(c) States require drivers to purchase liability insurance, not the Feds. And New Hampshire doesn’t even require. It’s not the same at all.

I’m not saying there aren’t limits to liberty or that we can’t regulate things. I’m saying this dumb drivers insurance analogy people have used for years now makes no sense.

It’s sad when good scholars and smart people will say pandering nonsense in the popular press to help out their team (see also: Krugman).

Related: It’s also sad that defenders of the individual mandate have to reach back to 1792 for any precedent, and that apparently doesn’t bother them. If there were no constitutional concerns with the federal government requiring individuals to purchase a good or service, why hasn’t it happened in the past two hundred years? I question the strength of a case that rests on citizens being forced to purchase muskets to put down rebellions and defend against “Indian tribes.”

Clearly, I’m just some idiot and not a legal scholar of any kind. But these arguments all take a “this is basic logic” tone that is plainly not true. Basic logic says that individual mandate is something new, something that the United States has not required citizens to do for nearly her entire history. And GEICO has nothing to do with it.

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