(Darwinder)
... another argument to remember is that language of the Constitution seems to allow taxing and spending for the general welfare. So there really needn't be any precedent of the federal government orchestrating a buy-in with its taxing-and-spending power for the matter to be sanctioned. One would think that taxing-and-spending are the quintessential powers that could be used for whatever purposes, so long as they did not violate the Bill of Rights or "especially-fundamental liberty."
(On the issue of analogous social practice, however, I'm sure one could find several. The comment about the Civil Rights Act was very interesting. Mandates to buy insurance exist in several contexts [autos, malpractice]. Surely there all sorts of regulations that require purchases of some sort before some government entitlement is given. I'm thinking about what you have to do to have business licenses, firearms licenses, to enter professions, etc. Don't statutes that forbid the illegal practice of law require purchase of a legal education?)
Regards and thanks.
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html
----- Original Message ----
From: Dawinder S. Sidhu <dsidhu at gmail.com>
To: Edward A Hartnett <Edward.Hartnett at shu.edu>
Cc: CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu>
Sent: Mon, March 22, 2010 4:29:53 PM
Subject: Re: Health Care Question
It seems that the historic examples of the government compelling
certain activity from the people relate to situations between
individuals and the *government* (i.e., individuals in the militia or
individuals wishing to meet the King). But Professor Barnett's piece
in the Washington Post calls into question whether Congress, invoking
its powers under the commerce clause, may require individuals to
engage in contracts with *private parties*. He writes, "While
Congress has used its taxing power to fund Social Security and
Medicare, never before has it used its commerce power to mandate that
an individual person engage in an economic transaction with a private
company." Examples that contradict this statement would be most
helpful in enriching and advancing our conversation.
As Professor Levinson indicates, the health care debate generally and
its constitutionality in particular implicate strongly held
philosophical views -- such as whether health care is a right or
privilege, whether a big government or a smaller government is
preferable, etc. That the debate on health care reform is so
contentious may be explained, at least in part, by the fact that these
views are so entrenched. Perhaps positions on health care are just
restatements of deeper philosophical viewpoints.
Finally, I do not doubt the importance of this bill, as a historical
matter or its potential impact on society more broadly. But its
importance should not -- and I hope does not -- dictate its
constitutionality.
Best,
Dave
--
Dawinder "Dave" S. Sidhu
* Co-author, Civil Rights in Wartime: the Post-9/11 Sikh Experience
http://www.civilrightsinwartime.com
* Selected research http://www.ssrn.com/Author_id=688955
"[T]o serve mankind . . . should indeed be the great aim and end of
all learning."
- Benjamin Franklin
On Mon, Mar 22, 2010 at 4:03 PM, Edward A Hartnett
<Edward.Hartnett at shu.edu> wrote:
> It's not just state militia laws. The federal Militia Act of 1792 provided:
>
> "That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores
sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes."
>
>
>
> Edward A. Hartnett
> Richard J. Hughes Professor
> for Constitutional and Public Law and Service
> edward.hartnett at shu.edu
> Phone: 973-642-8842
> Fax: 973-642-8546
> SSRN author page: http://ssrn.com/author=253335
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
> Sent: Monday, March 22, 2010 3:58 PM
> To: Nelson Lund; CONLAWPROFS professors
> Subject: Re: Health Care Question
>
> This discussion is getting awfully shrill. Rioting in the streets over a decision on the constitutionality of the health care bill? Please.
>
> Permit me to offer a story. I was on a brief vacation in Broward County, Florida, on that day in December, 2000, when the Supreme Court ruled in Bush v. Gore II that the election was over, and that Florida should stop its recount. What was so striking to me was that everyone on the beach, and on the streets, and in the restaurants, were very quiet -- everyone went about his or her business as if nothing had happened. No doubt, inside the Washington Beltway, where I work, everyone was going crazy. Outside that Beltway (and outside the legal academy), people take very large political decisions quite in stride.
>
> By the way, re: affirmative duties to act -- read U.S. v. Miller re: the laws of Virginia, NY, etc, compelling able-bodied men to acquire (at their own expense) arms and ammunition for use in the state militia.
>
>
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
>
> ---- Original message ----
>>Date: Mon, 22 Mar 2010 15:38:16 -0400
>>From: conlawprof-bounces at lists.ucla.edu (on behalf of Nelson Lund <nlund at gmu.edu>)
>>Subject: Re: Health Care Question
>>To: CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu>
>>
>> Presumably, then, rioting in the streets should also
>> be an appropriate response if the Court does not do
>> that? Or should one's view of the propriety of
>> rioting in the streets differ depending on whether
>> one agrees with the legal merits of the Court's
>> decisions? Or on one's views of the merits of the
>> legislation at issue? Or one's views of what is
>> "transcendentally important"? Or on whether the
>> decision was made by Republican judges?
>>
>> Nelson Lund
>> George Mason
>>
>> Sanford Levinson wrote:
>>
>> I confess I find it also a bit bizarre that the
>> discussion proceeds as if it is totally irrelevant
>> that a 5-judge Republican majority will be asked
>> to set aside, on the basis of remarkable
>> controversial (and, for many of us, entirely
>> dubious) theories of the Constitution, the most
>> important piece of domestic legislation in almost
>> fifty years. I think it would be a far more
>> remarkable piece of interventionism than even the
>> Old Court in 1935-36 in terms of the invalidation
>> of a truly central (indeed, transcendentally
>> important) piece of legislation. Would there be
>> rioting in the streets if the Court did that? I
>> certainly hope so.
>>
>>
>>
>> sandy
>>
>>
>>________________
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> _______________________________________________
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_______________________________________________
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Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.