Wednesday, June 27, 2012

Tough Luck Libertarianism and Health Care

Andrew Koppelman

I argued a few days ago that the constitutional challenge to the Affordable Care Act’s insurance mandate reflects the anarchist-libertarian proclivities of its principal theorist, Randy Barnett.  But this invites an obvious objection.  The challenge to the mandate is a freestanding argument.  It does not expressly rely on its author’s other views.  Why think that there is any relation between the two?

One important bit of evidence comes from the questions that three Justices saw fit to ask at the oral argument in March.  Those questions each presumed that something like Barnett’s philosophical views can be read into the Constitution – and that there is a serious danger that they will decide this case by relying on those views.  That is very bad news for anyone who is neither healthy nor rich.

You can read the rest of this post on, here.

Incidentally, I'd like to acknowledge here the assistance of my friend and colleague Steve Lubet, who, in conversation, coined the term "tough luck libertarianism."  It is, I think, an important contribution to the taxonomy of political theory.  Not all libertarianism is tough luck libertarianism.  Hayek and Friedman, for example, had no problem with redistribution.  Neither would be welcome in today's Republican Party.

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