Monday, April 16, 2012

Mandatory Health Insurance and the Ninth Amendment


“A wise and frugal Government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government...” - Thomas Jefferson.

Last month, the Supreme Court of the United States devoted 3 days of oral arguments to the question of mandatory health care. One of the most controversial aspects of the new law, the Individual Mandate will allow the federal government to require nearly all Americans to obtain health insurance. The opponents have often relied on the Ninth Amendment to the Constitution, as the basis to argue against expansion of Federal Government. One of them, a Georgetown law school professor, Randy Barnett, a passionate Libertarian, has been the main intellectual force behind the challenge to the Individual Mandate in the national health care laws.

So what is this Ninth Amendment? The Ninth Amendment is a part of the Bill of Rights and it reads:

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Basically, it says that the fact that there are certain rights and powers listed in the Constitution is all fine and good, but whatever is not specifically listed is still “retained” by “the people”. Consequently , there may be a presumption that people have certain rights and liberties, which are in addition to those specifically listed, and while the Framers may have thought of some, they probably did not think of all of them, so whatever they didn’t think of is still there and is “retained by the people”.

Over the years professor Barnett has developed a Ninth Amendment speciality. It is a favorite of the Libertarians, who use it to defend economic freedom and argue in favor of limiting government. When the US Constitution was signed on September 17, 1787 and then was sent to the states for ratification, there were two factions: The Anti-Federalists who didn’t want the Federal Government to have power and the Federalists who felt it was important for there to be centralized government to a certain extent.

The Anti-Federalists argued that the Bill of Rights should be added to the Constitution and the Federalists argued against it on the basis that it would make unclear who was “in charge” of those rights which are not named in the Bill of Rights. In 1788, the Virginia ratifying convention tried to solve that problem by proposing language that would say that clauses which declare that Congress shall not exercise certain powers should not be interpreted to extend the powers of the Congress by implication. They proposed language that would secure the States and individuals in their belief that unless there was a specific power that was given to the Federal Government, the Federal government didn’t have additional unstated power. Nothing in the Constitution should be used to extend the power of the government.

In 1789, the debate continued and the Ninth Amendment was brought to the House of Representatives. James Madison and Alexander Hamilton were involved, and the ultimate result was the “great residuum” statement. While the powers of the general government are circumscribed and directed to objects, according to James Madison, there was still a danger that government would have discretionary powers which may be abused. He said that the Ninth Amendment was critical because it addresses a "great residuum" of rights that have not been "thrown into the hands of the government."

Remember, the US version of democracy was still a fairly new phenomenon. In France, revolution was in full swing, its government swiftly moving into a distinctly different direction in anticipation of the upcoming Terror years. The United States was unique in its “moderation” of power by the government. The Ninth Amendment ultimately became part of the Constitution on December 15, 1791 upon ratification by three-fourths of the states.

Professor Barnett and other opponents of the proposed health care law say that the Ninth Amendment requires a presumption of liberty and implies that the government cannot force people to pay for or purchase insurance. Whether or not he is able to persuade the Supreme Court remains to be seen.
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