Archive for March 2010
So far, a lot of discussion about challenging the individual mandate of healthcare reform centers on the Commerce Clause of the Constitution: does Congress have the right to mandate purchase of private health insurance by virtue of its Constitutional authority to regulate interstate commerce?
It’s possible that all this concern with the Commerce Clause is obscuring and taking attention from more fundamental problems here. Look at it this way. Western European governments tax people to pay for socialized medicine. Basically it’s part of the income tax. In theory the US federal government could do the same thing; nobody would claim that such an increase in federal income tax is unconstitutional.
One way to interpret what’s happened is that the government is saying, “We could just raise your income tax by 20% and put all healthcare financing under a government insurance program. But this would be unnecessarily expensive. So instead, we’re going to make you send your money to private insurance companies, not us. Because of the competition that introduces, this will be better for everyone.”
So, from a practical standpoint, given a choice between the former model, which is clearly constitutional, and the latter, which is questionable, the latter is better. Maybe it’s not “constitutional” in a strict sense, but it is better.
However it appears there may be a deeper philosophical issue here — one that pertains to the fundamental relationship of citizens to government, and the nature of the social contract. Functionally, the individual mandate serves as a kind of tax. But usually taxes are for things we do or use. We pay sales tax on items we buy, for instance. We pay tax on income we earn. If you don’t buy anything or don’t earn anything, you don’t have to pay these taxes.
But the individual mandate amounts to a tax on just being alive. Thus, it is really more like a subscription fee than a tax: one is required to pay it simply because one is a citizen. That strikes me as unprecedented. The principle it implies — that, basically, the citizen is owned by the State, and has an *automatic* obligation to the State — seems like a defining feature of Socialism. It is a truly radical change in the relationship between the individual and the State. And whether it is explicitly prohibited in the Constitution or not, that does seem like something the founding fathers did not intend.
So in summary the argument I’m raising goes as follows: (1) under the Constitution, Congress could legally raise taxes to pay for universal healthcare; (2) if they’re allowed to impose such a tax, they should also be allowed to make us send our checks instead to insurance companies — because that is cheaper (the insurance companies would be functioning like contracted tax collectors and administrators); (3) however there is a significant question whether fees for mandatory health coverage are a ‘tax’ in the usual sense (and the sense meant by the framers of the Constitution), as opposed to a subscription fee demanded of citizens.
The Social Contract, Thoreau, and the Individual Health Insurance Mandate
It used to be (and hopefully is still the case), that, if one really wanted to, one could go some place like Montana, build a cabin, and ‘live off the land’. Today people associate this with extremists, but traditionally in American history this was just called homesteading. (Until recently, this was still done in Alaska; maybe it still is.) With no income, a person wouldn’t have to pay income tax. If someone else owned the land and let the person live there, there would be no property taxes. This person could live like Thoreau, a totally free individual. And, like Thoreau, this person, by virtue of this independence, might be able to more fully realize the depths and potentials of the human soul better than those who merely live like cogs in a machine.
Now consider that our Constitution, and our country itself, is founded on the principle of the Social Contract. By this principle, consenting individuals freely choose to abrogate the exercise of certain rights in exchange for the benefits of living in a community. Although they abrogate the exercise of certain rights (it is not clear that a person ever surrenders rights per se, but only the exercise of rights), they retain their essential freedom because they have freely chosen to participate in the Social Contract. The possibility to ‘live off the land’, or whatever else one wants to call it, arguably preserves our essential freedom. Perhaps in all cases a person would be foolish or unrealistic to drop out like this; maybe it should never be done in practice. But even if nobody chooses it, the option to live off the land exists: this makes us essentially free, and makes participation in the Social Contract a free choice.
Contrarily, if participation in the Social Contract is forced, then not only are people not free, but the Social Contract is invalid: a fundamental, universally acknowledged principle governing contracts is that parties must freely agree to participate; any contract effected by coercion is automatically invalid.
The Constitution does not go into the details of the Social Contract, but it is evident in the writings of the founding fathers that such considerations guided them. The insurance mandate would remove the ability of a person to live entirely freely. In theory, a person would need to earn money to pay the required subscription premium. If this does not negate the Social Contract entirely, then it is at least a fundamental alteration of in the nature of that contract, which is something not to be taken lightly. A change in the relationship of the individual to society/government this major should only be made with broad citizen support, with careful deliberation, and, preferably, only by means of a constitutional amendment.
Further, as the connection with Thoreau helps make evident, the current debate does broach issues related to religious freedom. If we build a society where there can no longer be a hermitage at Walden Pond, then some would argue that government is attempting to limit and control the human soul.
John Uebersax PhD is a former faculty member of the Wake Forest Medical School and RAND Corporation policy analyst.