Wednesday, June 27, 2012

Will "Tough luck libertarianism" destroy Healthcare Reform - Andrew Koppelman

Northwestern U. law prof Andrew Koppelman is one of my favorite law profs to read.  (Most academic legal writing is so disconnected that I wonder why the profs get up in the morning.)  He is engaged and engaging. (That being a favorite complimentary verb of mine.)
He recently dismantled (to my satisfaction) Georgetown law prof Randy Barnett who is engaged - but on the wrong side.  Barnett is credited with the brilliant wrong-headed simplicity of the argument that the Affordable Care Act's individual mandate is unconstitutional because it compels you to engage in commerce - rather than regulate commerce.  This argument has lots of Tory resonance - Margaret Thatcher justified the Falklands war by Argentina's breach of its contract recognizing the Empire's sovereignty over the windswept south Atlantic pastures.  Karl Marx in the Communist Manifesto called freedom of contract the "single unconscionable freedom" to which the bourgeoisie had reduced all freedom.  So there you have Barnett's core argument: a contract I am not free to reject is tyranny not liberty.  In this follow-on piece Koppelman credits his colleague Steve Lubet with the stunning phrase "tough luck libertarianism".  Brilliant. - GWC

"Tough luck" becomes law - Healthcare Reform -
by Andrew Koppelman
"I argued a few days ago that the constitutional challenge to the Affordable Care Act’s insurance mandate reflects the anarchist-libertarian proclivities of its principal theorist, Randy Barnett. But this invites an obvious objection. The challenge to the mandate is a free-standing argument. It does not expressly rely on its author’s other views. Why think that there is any relation between the two? One important bit of evidence comes from the questions that three justices saw fit to ask at the oral argument in March. Those questions each presumed that something like Barnett’s philosophical views can be read into the Constitution – and that there is a serious danger that they will decide this case by relying on those views. That is very bad news for anyone who is neither healthy nor rich."

'via Blog this'

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