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

People who are politically “conservative” or “libertarian” in the way those terms are often deployed in contemporary American public discourse almost universally regard the Patient Protection and Affordable Care Act (PPACA) as objectionable and, in a related but distinct vein, unconstitutional. The favorite focus of such conservative and libertarian protest is the Act’s so‐called individual mandate—the requirement that individuals buy health insurance from a private market.

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.8 Why, one must therefore ask, is it wrong for a government to commandeer its own people?

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