As Odysseus prepares to return home to Ithaca, His beautiful lover, the goddess Circe, warns him that he will face many dangers, the most perilous of which will be “the Sirens with their sweet, alluring, fatal song.” Odysseus, therefore, commands his men to tie him to the mast of their ship, and to lash him tighter every time he begs to be set free.
Professor Robert Blecker explains in the 2004-2005 New York Law Review that Odysseus is the sovereign; his word is law, but he binds his future-self with a past command—he ensures that his wisdom of the past will protect him from the alluring, but fatal passions of the future. At this moment, Blecker argues, constitutionalism is born.
The founding document of American democracy is the Constitution. In living by the Constitution, we accept being bound by the wisdom of the men of 1776, in order to prevent us from being allured by the passions of the moment. Like Odysseus and his crew, whose fatal passions are curbed by Odysseus’s first command, our democracy lives today because our Constitution has prevented us from going astray.
Today we once again face a challenge to our Constitution. We face the alluring but dangerous temptation of the Affordable Care Act. We’ve been told that this bill will give Americans the healthcare they so desperately need and so rightfully deserve. We’ve been told that the Affordable Care Act is a landmark piece of legislation that will help the poorest of Americans. We’ve been told that this bill will prevent freeloaders from waiting until they get sick without healthcare to pass the bill along to us taxpayers. This might all be true. I’m not here to debate the merits of socialized medicine. The benefits of the Act are irrelevant, and so is its $1 trillion-dollar cost.
What is relevant is that the Affordable Care Act is unconstitutional. What matters is that the government doesn’t have the right to force citizens to buy things that they don’t want to buy. Nowhere in the Constitution is the Federal Government granted the right to tell individuals what they must buy.
The government is limited to negatives. You can’t buy marijuana; you can’t buy cigarettes unless you’re 18; you can’t drink until you’re 21. Special taxes can even be imposed on products to de-incentivize buying them. But a mandate in the positive is unheard of. For the Federal Government to tell you what you must buy is a radical change in how we view the role of government. Justice Anthony Kennedy said in reference to the Act: “The government is saying that the Federal Government has the duty to tell the individual citizen that it must act, and that changes the relationship of the Federal Government to the individual in a very fundamental way.”
Indeed, this act drives the American people down a very slippery slope toward governmental control of their everyday lives. So long as the government can prove that its mandate will reduce healthcare costs, and prevent people from getting sick and leaving the government with the bill, which is the logic behind the healthcare bill, it can mandate that you buy whatever it says. If the government decides that each individual must eat an apple a day, it would be legal. If it decides that each individual must buy Nike sneakers, that would be legal, too. As ridiculous as these examples might sound, from a legal perspective, such laws would be the natural result of a precedent that gives the Federal Government the power to regulate purchases based on the presumed best interest of the consumer and of the government.
President Obama and those defending the Act are quick to justify the constitutionality of their legislation with the Commerce Clause. This clause states that the United States Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Regulating the behavior of healthcare companies—that might be included in this clause. But forcing me, as an individual, to buy healthcare– how is that interstate commerce?
Paul Clement, the attorney challenging the Act in the Supreme Court, was right in saying, “The Mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.” Government regulation should not extend so far as to mandate action. We’ve allowed Congress to stretch the Commerce Clause very far, but it’s getting ridiculous.
Today, we are once again tied to the mast. The passions of the moment are alluring. Our healthcare system is dysfunctional, and we desperately want to fix it. But passions can be misleading and, as in the case of Odysseus, harmful. The Constitution is our sovereign. It rules us and keeps us on the right path. If we break from those rules, we set ourselves on a dangerous trajectory toward calamity.