The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett
The conservative and libertarian objections to the individual mandate implicate some of the deepest and most contested questions concerning our Constitution, constitutionalism in general, and the relation of positive law—including constitutional law—to the ends of good government. It is no exaggeration to say that it even implicates questions about who we are. Professor Randy Barnett has recently argued that the mandate raises questions about the sovereignty of “We the People.” Specifically, Barnett contends that the mandate is unconstitutional because it violates the people’s sovereignty by “commandeering” them into buying health insurance. Why, one must therefore ask, is it wrong for a government to commandeer its own people?
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