Barnett is one of the most interesting voices on the law out there. I wonder what my fellow blogger Marcus Cole thinks about his work….
Here is a discussion with Barnett about Obamacare from the Wall Street Journal. It includes an interesting discussion of the mandate as a “commandeering of the people”:
“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”
One point that needs to be partially corrected, however, is that the U.S. doesn’t quite commandeer people to serve in the military anymore. We have an All-Volunteer Force (AVF) within a Selective Service framework. Of course, the government mandates that males 18 and over register in keeping with the requirements of Selective Service and reserves the power to reintroduce conscription – something repugnant in a free society. I think conscription ought to be forbidden since forced military service is a form of slavery. Moreover, a healthy republic with a virtuous citizenry fighting a war in the national interest should not require conscription.