Saturday, December 18, 2010

Ken Cuccinelli's lawsuit against Obamacare

Ken Cuccinelli, the attorney general of Virginia, just won his case before a federal judge in Richmond on Monday. On Thursday he published an editorial insisting that the case go quickly to the Supreme Court. I think he makes an appropriate argument against the health care bill. Regardless of anything else Cuccinelli might say or do, I have to support him, at least in principle, in this argument:

The health-care law sacrifices the liberty of Americans and abandons the Constitution that protects that liberty. The power Congress claims it has to create the mandate and penalty has no principled limits: If the federal government can order a citizen to purchase a private product such as health insurance in the name of public policy, it can order us to buy anything.

That's not an especially sophisticated way to make his point, but the essential point needs to be heard. The fact that the Left is responding to this lawsuit only by stressing the importance of universal provision of health insurance underscores the need to remind the American people of a fundamental principle: the rule of law. Those "principled limits" to which Cuccinelli refers are precisely the means by which we prevent government from being arbitrary. He is right to insist that this lawsuit isn't about health care, and this is what Americans need to understand clearly. If we are to live in a free society, the individual aims and actions of government cannot be measured according to their own merits, but must pass a test of abstract principles.

My sense is that this is frustrating to most Americans. If something is a good idea, why can't we just do it? Surely providing health insurance to all people is a good thing; why should abstract principles such as individual property rights prevent us from accomplishing our goal? There are a number of rather sophisticated answers to that, but to keep things simple, let's just consider a basic fact about collective decision-making: it is one thing for a majority of people to agree on a general principle that we all must follow, and it is quite another for a majority to agree on a task that needs to be completed. A task that needs to be completed requires a plan. One can imagine that providing health insurance to all people would require an enormous amount of planning (the health care bill itself is 2000 pages, but even that does not begin to handle all the details that will actually need to be dealt with). While it is easy to agree on the goal of such a large task, it is impossible for a majority of people in a large society to agree on the details of the plan needed to complete that task--especially when the plan will necessarily be so complicated!

It might be objected that general principles can also become disagreeable to the majority of Americans as attitudes change over time. Thus perhaps the majority of Americans wish to change the principle of property rights to suit a more equitable distribution of resources. But if we are to remove such a principle, we ought to know precisely what we are going to replace it with. The fundamental idea on which we ought never compromise is that all laws should be guided by general principles. While it is true that Americans don't have to agree with me on this basic point, it will in the long run mean a loss of liberty if we don't.

Most often people won't object to the general principles already in place. They simply want to have their cake and eat it too. Why can't we retain the basic principle of personal property while also charging government with the responsibility of ensuring that all Americans have sufficient health care? The honest reason is that, while it seems pretty clear that government could accomplish this task if it were bent on it, it is almost certain that government could never accomplish this without being essentially arbitrary in giving orders to particular people. We have already gotten a foretaste of this arbitrariness, even before this health care bill bill has gone fully into effect. As Democrats were prone to saying before the bill passed, "We won't know what the bill will do until after it's passed." We can, however, be assured that the government will have to assume more and more discretionary power over our lives if it is going to accomplish the task assigned to it.

If we want to solve a complex problem such as distributing health insurance, the ingenious answer left to us by the providence of history is the market. This allows each of us to coordinate our needs and desires with those of everyone else, without being coerced. If you give the responsibility of accomplishing such a complex task to the government, the only way it will be able to accomplish this is by coercive measures. The more complex the task, the more coercive these measures will eventually become.

This is why Cuccinelli's lawsuit isn't just an example of stodgy conservatives clinging to a strict interpretation of the Constitution, merely for the sake of tradition. Freedom really is at stake. Unless Americans are willing to put principles before particular collective goals, then we are going to keep losing the freedom we currently enjoy.

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