In an article at The Daily Beast on "the right's freedom fetish," Newsweek correspondent Michael Tomasky opined:
Behind the challenges to the Affordable Care Act [ObamaCare] being heard at the Supreme Court this week is the idea that Barack Obama wants to take away your freedoms ... this "freedom" business is simply paranoid and delusional. I defy anyone to name for me a specific and precise freedom that Obama has taken away from the American people. You can't. ... all such laments are based on ignorance about what freedom actually means and an equal ignorance about how our system of government works.
OK, how about the freedom to not enter into a private contract? At the Washington Post, George Will writes:
The individual mandate is incompatible with centuries of contract law. This is so because a compulsory contract is an oxymoron.
The [amicus brief] says that Obamacare is the first time Congress has used its power to regulate commerce to produce a law "from which there is no escape." And "coercing commercial transactions" -- compelling individuals to sign contracts with insurance companies -- "is antithetical to the foundational principle of mutual assent that permeated the common law of contracts at the time of the founding and continues to do so today."
In 1799, South Carolina's highest court held: "So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse such contracts. . . . Contracts to be binding must not be made under any restraint or fear of their persons, otherwise they are void." Throughout the life of this nation it has been understood that for a contract to be valid, the parties to it must mutually assent to its terms -- without duress.
Game, set, and match. To better understand "what freedom actually means" and "how our system of government works," Mr. Tomasky should read Mr. Will's entire column, as well as the amicus brief he references. Of course, the freedom issue that has gotten many folks exercised lately is that of religion and conscience, and here again Tomasky errs:
Neither is there a freedom issue with regard to the Catholic Church and the recent controversy over contraception. First of all, no church has to change a single thing about the way it operates. And Catholic hospitals will not, under the new rule, have to provide contraceptive coverage -- they will just be required, if they refuse to provide such coverage, to tell enrollees how they can acquire it through other means.
Obviously, Tomasky didn't get the memo that money is still fungible. Perhaps he also thinks that water deposited in one end of a pool can stay separate from the water at the other end of a pool. (Behave, water.) In any event, if the religious deem contraceptives to be unacceptable, even sinful, how can they "just be required ... to tell enrollees how they can acquire it" without violating their freedom of religion as guaranteed by the First Amendment?
Tomasky goes on to invoke John Stuart Mill's harm principle, but only to misapply it:
A person can act with complete freedom so long as his actions don't harm others. Well, pal, if you're healthy and 35 and you don't buy insurance and you get hit by a bus and you need $10,000 in medical care and you can't and don't pay for it, that harms me, because I'm an insured taxpayer and I'm helping to pick up your tab. That is freedom: not just the right to be left alone, but also the obligation to take responsibility for the consequences of one's own actions on the freedom of other members of society.
Agreed: "your freedom ends where my nose begins." But the "harm" to Tomasky's finances in the above scenario wasn't caused by the uninsured accident victim. Rather, it was caused by Congress when it mandated that hospitals treat the uninsured.
A more correct application of the "harm principle" is the banning of behaviors that harm others, such as drunk driving. But if the aim is to not cost the "insured taxpayer" any more money, we would ban alcohol, not just alcoholic driving. That's because alcohol harms not only innocent folks in carnage on the highways but also the imbiber himself. And the harm to the imbiber runs up medical bills and therefore insurance premiums. If our criterion is any extra expense visited upon the insured, we couldn't very well stop with booze, we'd also need to ban tobacco, fatty and sugary foods, etc. etc. And if we're to really prevent "harm" to the insured, we'd require folks to exercise, lose weight and, yes, eat broccoli. Does that sound like freedom to you? Tomasky again:
This, incidentally, is the answer to an oft-bruited rhetorical question, "What's to prevent the government from making a law requiring that everyone eat broccoli?" One answer is: nothing, at least in theory. If a future Congress wants to make such a law, it can do so and see what happens in the courts.
"A future Congress," you say? Congress has already enacted "such a law": ObamaCare. When the Supreme Court heard arguments on the individual mandate, the justices repeatedly asked the Solicitor General for a "limiting principle" that would prevent Congress from forcing us to do things, and thereby limiting our freedom. Justice Scalia:
And we've held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is -- may be necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what, what else can it not do? [...] An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. [...] I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not. [Pages 26 - 29.]
So, in the case of ObamaCare, it is the Tenth Amendment that is the guarantor of freedom. What's disturbing about guys like Tomasky is that they don't understand that a government of unlimited power is a government that has no room for freedom.
NOTE: Watch this short video on ObamaCare by one of my favorite jurists, Judge Andrew Napolitano. (Alas, Fox Business cancelled his show, Freedom Watch.)
Jon N. Hall is a programmer/analyst from Kansas City.