Today George Will nicely eviscerates what may be the strongest — indeed, it may be the only — argument that Obamacare’s individual mandate is constitutional. That argument is as frightening as it is familiar: its essence is that if the end is legitimate, no means necessary to achieve it can ever be illegitimate.
Will asks: “Does the fact that Congress has the constitutional power to do X — say, guarantee universal access to insurance — make Y constitutional merely because Y is necessary for doing X?” You’d think that to ask that question is to answer it — surely some means can be illegitimate to reach a legitimate goal, right? Otherwise torture of guilty suspects would be legal; it would be legal to invade a criminal’s home to seize evidence of his guilt without a warrant; it would be legal to engage in unadorned racial discrimination in order to produce “diversity” (Oh, wait…). Here’s an example Will offers:
Congress has the constitutional power to combat political corruption, the “appearance” thereof and the “circumvention” of laws for this purpose. But suppose Congress, exercising this power by regulating campaign finances, decides that abridging freedom of speech is necessary for its anti-corruption measures
Of course, as Will knows better than most, that’s exactly what the liberals in Congress did in passing McCain-Feingold “campaign finance reform,” until swatted down by the Supreme Court.
Now they’re at it again with individual mandate. Will cites a forthcoming article in the University of Pennsylvania law review whose argument is that the mandate must be constitutional because it is “inextricably intertwined” with the insurance reform (requiring to companies to insure people with pre-existing conditions) chosen by Congress. The author of that article, Mark Hall of Wake Forest, doesn’t shrink from the clear implication of his argument: the Constitution bars no means to achieve a legitimate goal. He “perfunctorily says,” Will notes,
that “some limit” on Congress’s commerce power “is necessary” but then says “democratic electoral constraint” — trusting “the political process itself to set limits” — will suffice to restrain government.
It was to protect against such unrestrained government power that we the people ordained and established our Constitution, one of whose animating purposes is to restrain over-zealous government from using improper means to accomplish even desirable ends. If you think we all agree on that principle, you haven’t been paying attention to today’s liberals.