Abstract

http://ssrn.com/abstract=1769921
 


 



The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett


Patrick McKinley Brennan


Villanova University School of Law

February 25, 2011

University of Pennsylvania Law Review, 2011
Villanova Law/Public Policy Research Paper No. 2011-2001

Abstract:     
Randy Barnett has recently argued that the individual mandate is unconstitutional because it is an improper regulation under the Necessary and Proper Clause (in conjunction with the Commerce Clause) because it improperly "commandeers" the people and thereby violates their sovereignty. In this paper, I counter that the argument from sovereignty is unavailing because it is, among other defects, hopelessly ambiguous. The variety of historically attested meanings of "sovereignty" renders the concept useless for purposes of answering questions of comparative authority, including the authority of the Congress to mandate that individuals purchase health insurance from a private market. There is no analytical help to be had from following the Supreme Court's lead and imputing "sovereignty" to the nation state, each of the fifty states, the people, the people of each state, tribes, and each individual. Sovereignty purports to be a scalar quantity, but such a quantity cannot be univocally predicated of these many different kinds of things. There is a better way forward. When the libertarian element in contemporary "conservatism" is judged against a traditional account of natural law and of the natural and positive-law rights it generates, there is room to ask whether the individual mandate is (1) within our particular government's scope and (2) good, in fact, for the people for whom the government exists. The paper argues that, in addition to being hopelessly ambiguous, claims to sovereignty are false.

Number of Pages in PDF File: 27

Keywords: individual mandate, sovereignty, commerce clause, necessary and proper, commandeer, written constitution, health, negative liberty, positive liberty, Hobbes, Bodin

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Date posted: February 28, 2011 ; Last revised: August 8, 2012

Suggested Citation

Brennan, Patrick McKinley, The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett (February 25, 2011). University of Pennsylvania Law Review, 2011; Villanova Law/Public Policy Research Paper No. 2011-2001. Available at SSRN: http://ssrn.com/abstract=1769921

Contact Information

Patrick McKinley Brennan (Contact Author)
Villanova University School of Law ( email )
299 N. Spring Mill Road
Villanova, PA 19085
United States
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