(AP/Charles Dharapak)

Obamacare hater No. 1

Randy Barnett's main argument against the ACA isn't just against healthcare -- it's against the entire Constitution

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Andrew Koppelman
June 20, 2012 11:43PM (UTC)

As we await the Supreme Court’s decision on the constitutional challenge to the Affordable Care Act’s health insurance mandate – it will almost certainly come down on Monday, the last day of the term – it is worth reflecting on the underlying philosophy that has taken us to this point.

The challenge is most remarkable for its sense of priorities. Constraining government power, through newly crafted rules that were unheard of when the law was passed, matters more than millions of people without health insurance.


Why would it make sense to think about government power that way?  The philosophical work of Randy Barnett, who essentially invented the constitutional objection, provides a valuable window into the assumptions behind the challenge. His 1998 book, "The Structure of Liberty," is an ambitious effort to work out libertarian principles of law from the ground up. These are justified on rule consequentialist grounds. He claims that his principles of justice must be respected if we are to achieve happiness, peace and prosperity.

The book begins with an eloquent and beautifully written defense of the institutions of property and contract.  (Barnett is the most successful legal rhetorician since Catharine MacKinnon persuaded us that sexual harassment is sex discrimination.)  He depends heavily on the Hayekian point that everyone’s knowledge of the world is incomplete, that there needs to be some way of quickly communicating to each person the effects of their choices on everyone else, and that price mechanisms perform this function wonderfully.  The first 150 pages are as clear a statement of a liberal ideal of the rule of law, and its relation to legal rules of property and contract, as I have read. It would be valuable reading for anyone beginning law school.

In the second half of the book, however, his admiration for private ordering gradually hypertrophies into a rejection of public provision of any service at all. He wants to privatize schools, prisons, courts, streets, parks and the police. The ultimate vision is anarchist.

The basic shift in the argument occurs when he takes up the problem of public goods – goods whose owners cannot exclude the public, and which therefore will be under-supplied by the market. The classic example is lighthouses; others are clean air and water, scientific knowledge, roads and street lighting. Such public goods are now typically supplied by taxation and government spending. Barnett doubts that such goods are really beyond the capacity of markets to supply, and worries that even if they are, it is impossible to know, absent prices, what the socially optimal level of such goods would be. But he also has a more fundamental objection: that provision of public goods by taxation uses “illicit means,” because it seizes private property.  Even if market failure exists, it does not mean “that the requirements of justice should be ignored or overridden.”

Here he suddenly and without explanation has shifted from a Hayekian mode of argument, in which property rights are justified on rule-consequentialist grounds, to a Nozickian one, in which those rights are fundamental requirements of justice that must be respected regardless of consequences. Yet he offers no reason for thinking about property in nonconsequentialist terms. (For instance, he has no use for claims that owners of property deserve their holdings.) If better consequences could be obtained by defining those rights in less absolute ways than Barnett has in mind, then the requirements of justice have not been overridden at all. They have merely been defined in a different way than Barnett imagines.

If we are going to think about property in consequentialist terms, we have to ask, consequentialist for whom? Whose happiness, peace and prosperity are we talking about?

Nikki White contracted systemic lupus erythematosus about the time she graduated from college. She soon was too sick to go to work, with stomach pains, skin lesions and extreme fatigue. Lupus, a chronic inflammatory disease, is treatable, but treatment requires frequent monitoring for side effects. White became so ill that she had to quit her job, and like most Americans, her job provided her health insurance. She then applied to every individual insurance plan she could find, but of course no for-profit insurance company will cover someone who has chronic lupus. She spent the rest of her short life fighting the Medicaid bureaucracy to try to obtain coverage – coverage that of course would not exist in Barnett’s ideal world, where there would be no Medicaid. Meanwhile her health steadily deteriorated. She suffered a seizure and died at the age of 32. “Nikki didn’t die of lupus. Nikki died from complications of the failing American health care system," said her doctor T.R. Reid, who writes about her story in "The Healing of America." If she had lived in any rich country other than the United States, she would be alive today.

What has Barnett to say to the Nikki Whites of the world? The closest he comes to an answer is his uncharacteristically cursory and superficial response to the philosopher John Rawls.


Rawls is the most sophisticated modern proponent of social contract theory – a tradition going back to Hobbes, Locke and Rousseau. He proposed that society should be seen as a scheme of cooperation among equals. In order for the social contract to be fair, its terms should be devised without any of the parties knowing their position in society, most relevantly whether they would be rich or poor. With their information thus restricted, Rawls argued that the parties would agree only to those inequalities that benefited the least well-off. There could be a capitalist economy, but its fruits would have to be shared, by redistributive taxation and other such measures. He eventually concluded that this would mean a right to healthcare. No one would agree to a social contract in which property rights were distributed in a way that might leave her without needed medical resources. Something like Rawls’ view underlies the Affordable Care Act, which goes a long way toward guaranteeing that no American citizen is ever again placed in Nikki White’s position.

Barnett thinks that any conception of distributive justice faces two insuperable difficulties: “the task of determining who will have their resources taken away and who will be the beneficiary of the taking,” which has no clear answer and thus will be the subject of factional politics, and the negative incentive effects on producers and costs of coercive enforcement. Any conception of distributive justice is subject to errors of application. When those errors occur, “innocent people will be jailed, their incomes attacked, their homes and businesses confiscated. Lives will be ruined.” (Barnett supposes that those who disagree with the system of redistributive taxation will forcibly resist and therefore be punished. That is not what typically happens in the modern United States.) But of course any property rules require coercion. Barnett resists broad rights such as a right to healthcare, because any rights legitimate the use of violence to secure them. “The more rights we recognize the more violence we legitimate.”  But what do you suppose will happen if Nikki White walks into a pharmacy and grabs a bottle of medicine that she needs in order to stay alive?

One need not agree with the details of Rawls’ conception of justice in order to see that his approach can easily rule out some conceptions, because they could not possibly command universal agreement. (The idea that social contract theory can rule out some arrangements is much older than Rawls. You can find it in the work of the libertarians’ hero, John Locke. See Jeremy Waldron, "The Right to Private Property.") The fundamental problem with Barnett’s political principles is that neither Nikki White, nor anyone whose own family members might be in her position (a group that includes everyone who is not extremely rich), could possibly agree to them.

Barnett thinks that because decentralization works so well for markets, it would also be good for the use of coercive force: different courts should compete for customers. (H.L. Mencken defined an idealist as “one who, on noticing that a rose smells better than a cabbage, concludes that it will also make better soup.”) The ideal political order is one in which “multiple legal systems exercise the judicial function and multiple law-enforcement agencies exercise the executive function.” There would be no state with a monopoly of coercive force to resolve disputes between these entities. All power would be private power, regulated by contract. Barnett is remarkably confident that power in such a system would be exercised well. Individuals would each have the right to enforce their own rights of restitution, self-defense and preventive detention. Imprisonment would be justified only when necessary to guarantee the speed and certainty of restitution, and private detention centers would employ the offenders in productive labor. If someone wrongly exercised private enforcement power against you, you could go to court and sue them for it. Evidently bad law-enforcement institutions would be subject to coercive discipline by good ones. It goes without saying that redistribution would be impossible.


Barnett thinks that the consequences would be peace and prosperity, because it is not in the interests of repeat players to seek short-term gains at the cost of long-term conflict. But we don’t have to go to hypothetical worlds in order to find situations in which such cooperation fails to emerge. The experiment of having multiple armed factions trying to exercise control over the same geographical area has been tried many times. The consequence, Jeffrey Winters’s book "Oligarchy" shows in an exhaustive survey, is a system of “warring oligarchies” – prehistoric societies and medieval Europe are his principal illustrations -- in which any peace is fragile and temporary. There are few modern examples. One is the mid-20th-century Mafia Commission in the United States. It was predicated on the value of cooperation, which promised and often delivered huge financial benefits for all participants, but its equilibrium was punctuated by frequent wars and assassinations.

Libertarianism aims to shrink the domain of state power, leaving citizens to make the best deals they can with one another, given the resources they happen to have. In his essay, "Illiberal Libertarians: Why Libertarianism Is Not a Liberal View," Samuel Freeman has observed that this vision of a just society is not liberalism, but rather resembles its ancient adversary feudalism, in which parties trade their allegiance for protection by the powerful. Winters shows that feudalism isn’t good even for the ruling class, whose lives are precarious, though they do get to lord it over the serfs. But the real effect of Barnett’s intervention in the contemporary United States is not likely to be anarchy, but the continuing erosion of public services and consequent reduction of the tax burden at the top, while a single centralized state continues to vigorously protect private property: feudalism without the disadvantages.

The benefits of being rich in such a system would be magnified by Barnett’s peculiar understanding of criminal law, which discards deterrence and retribution and would demand only that criminals make restitution. We don’t need to worry, he says, that the rich would be inadequately deterred from crime: “The wealthy tend to place a very high subjective premium on their social standing and other sorts of reputational effects that would be severely damaged by a successful prosecution.”  But the wealthy, as he concedes elsewhere, is a heterogenous and poorly defined group. “Sue me if you dare!  My father is Li Gang!” said the 23-year-old son of a Chinese police official after his drunken speeding killed a woman. Public pressure eventually forced authorities to criminally prosecute him.

Not in Barnett’s world.

Barnett’s anarchism is the deep philosophical source of his most important creation, the proposed rule, which the ACA violates, that “[u]nless they voluntarily choose to engage in activity that is within Congress’s power to regulate or prohibit, the American people retain their sovereign power to refrain from entering into contracts with private parties.” (Randy E. Barnett, "Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional," 5 N.Y.U. J. of L. & Liberty 581, 634 (2010).)  Of course, no such rule appears in the text of the Constitution, but Barnett has argued elsewhere that vague terms in the text – such as Congress’s broad power to regulate commerce among the several states – “should be given the meaning that is most respectful of the rights of all who are affected.” Barnett’s peculiar understanding of rights undergirds his claim that the ACA’s mandate is unconstitutional. The Supreme Court Justices who sympathized with his argument had a similar view.


The most fundamental problem with this constitutional vision is that the Constitution was adopted specifically in order to give Congress power adequate to address the nation’s problems. That is its fundamental and overriding purpose. A situation in which neither the states nor the federal government could solve the country’s problems was what we had under the Articles of Confederation. It is precisely what the Constitution was intended to prevent. Yet on Barnett’s reading of the Constitution, the existence of large numbers of people without adequate healthcare is a problem that no one can address. "The Structure of Liberty" answers the puzzle: Barnett does not believe that there are any common problems that a national government is necessary to solve. In the debate over ratification, he would have been solidly with the Antifederalists. It is odd to read the Constitution as if the Antifederalists had won.

Barnett’s philosophy is good news if you’re prosperous and healthy.  It’s bad news for Nikki White.  Barnett’s book never really confronts the question of what to do about people like her.  The death of Nikki White in Barnett’s philosophy is like the death of Miles Archer in "The Maltese Falcon":  It is the most important issue, but the reader is cleverly kept thinking about something else.  She has to accept her tough luck, because it would be unjust, a violation of people’s rights, if the state were to use its coercive power of taxation to aid her.  Such early, preventable deaths are not a problem at all.  They show that we live in a just society.

Andrew Koppelman

Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University.

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