Make Mine Freedom

As the Democrat Health Care Reform bill flies through Congress like crap through a goose, because obviously if we delay for even a month (which might even give our elected representatives a chance to read the damn thing) untold tens of thousands of uninsured Americans and non-Americans who happen to be living here (legally or not) will be dropping dead in our streets, I confess that one question that has not been raised by the Usual Suspects is the Constitutionality of the bill.

Now, obviously, ever since John Marshall decided that the Federal Government had the authority to do whatever the hell it wanted (the wording of the Constitution be damned), the concept of the Constitution as a “limiting document” is out the window. Looked at that way, a Federal health care system would be clearly unconstitutional, since no power is given to any branch of the Federal government to do such a thing. However, something struck me tonight as I was watching some of the coverage leading up to Professor Utopia’s press conference, which is this.

Let’s say you move from one job to another. The bill, as written, says that insurance companies cannot take on new customers. So, you’re forced to either take Obamacare or pay a $2,500 fine.

The Ninth Amendment says:

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

The Tenth Amendment says:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Doesn’t that mean that we have a right *not* to take Obamacare? And can we really be penalized for exercising a right?

Well, in this mixed up country, maybe we can. But if the suit made it to the Supreme Court fast enough, we might just have enough Originalist justices that such an argument might work.