Are we in a prison without bars? Last week I commented on the Republican Presidential candidates’ knowledge of the Constitution. In that message I made the statement that the Constitution prevents an Obamacare-style individual mandate regardless of whether it’s implemented by the Federal government or a State government.Many of you responded with the same question: “What part of the U.S. Constitution prevents a State government from imposing an individual mandate?” This message is my response to that question: The U.S. Constitution imposes upon the Federal government a duty to protect certain rights of individual citizens against intrusion by State government. This duty arises from at least two places in the Constitution: Article IV section 2, and the 14th Amendment. Article IV section 2 states: “The citizens of each State shall be entitled to the privileges and immunities of citizens in the several States.”
The 14th Amendment section 1 states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These sections unquestionably do impose upon the Federal government a duty to protect individual citizens from State violations of certain rights. But, the question is: what rights are protected from State intrusion? That question has been debated since the Constitution was ratified. We fought a war over it, and the question is still being hotly debated. When it’s answered poorly States lose sovereignty, millions of babies are murdered, private property is stolen by States, and many other rights are violated. When it’s answered properly States are prevented from denying free speech, prevented from imprisoning individuals without a jury trial, prevented from disarming their citizens, and prevented from stealing private property. Now, our specific question is this: does the Federal government have a duty to protect individual citizens from a State law requiring individuals to purchase health insurance? I believe that the U.S. Constitution imposes such a duty upon Federal government. I understand that many Constitutional scholars would disagree with this assessment, but they’re analysis is flawed. I admit that the rights protected by the privileges and immunities clause and the 14th Amendment have been interpreted to prevent State actions only in limited and specific circumstances. I also admit that State imposition of an individual mandate arguably does not fall within the things that have been clearly defined as violating individual rights protected by the U.S. Constitution.However, the individual mandate presents a situation never seen before in America. Never before has a State law imposed a penalty on individuals that do nothing. No criminal or civil law punishes individuals for not acting, unless they have a duty to act that arose from something that the individual did earlier. Taxes are also based upon activity: income, purchasing, using, owning, acquiring, etc. Court interpretation of the 14th Amendment’s protection of “Liberty” have, so far, limited this right to preventing imprisonment without due process of law. However, the word “Liberty” doesn’t simply mean “not imprisoned.” If the drafters of the Amendment intended this limitation they could have simply said “not imprisoned.” They used the much broader word “Liberty” because they intended to have the Federal government actively prevent States from denying individual citizens “Liberty” without due process of law. So, what is “Liberty?” Certainly the courts got part of it right. Imprisoning someone without due process certainly violates the 14th Amendment. But this is not ALL of what “Liberty” means. Liberty also means being free from government punishment for doing absolutely nothing. In theory the individual mandate can punish an individual that is born in the woods, has never spoken to another person, has never participated in any market, and wouldn’t know a hospital if it bit him. You see, the government has created a fiction that all people MUST be part of their health care system, whether they choose to take part or not. The same liberals that support government-sanctioned murder of babies in the name of health care choice, have taken away all Americans’ freedom to choose tonot participate in the health care system. Ironic, isn’t it?They’ve defined “Life” as not including a living individual with a unique genome. Now they’re trying to re-define “Liberty” as simply not being in prison. “Liberty” includes the right to say “No.” It includes the right to NOT participate. The phrase “without due process” doesn’t change this analysis.“Without due process” does not mean that a State can deny its citizens’ rights to life, liberty, or property by simply passing a law that denies these things. If that were the case, then the rights would have no meaning. The State could simply pass a law revoking any right. Due process means that if a State does have a substantive right to deny life, liberty, or property, such denial must be based upon an act of the individual and the State must prove that the act happened. In other words, rights must be waived by individuals through their affirmative acts. Rights cannot be denied by the State absent some act of the individual. In the criminal context, a state must prove that the citizen has violated some criminal law. It must do so without violating other rights protected by the Constitution. It must inform the individual of the charges, allow access to an attorney, not force the individual to testify against themselves, provide a jury trial, and not use evidence obtained in violation of other Constitutional rights. This is “due process of law.” In the civil context the State must provide notice of the acts of the individual that gave rise to the State’s right to end property rights. Usually a hearing is also required. What all these circumstances have in common is an action by the individual, which leads to the substantive right of the State to deny an individual right. An act of the individual MUST proceed the State's act that takes away that individual's rights. Committing a crime, owning property, driving a car, running a business, are all common examples of actions that can lead to loss of rights if laws are violated in the process. Also, the loss of rights by the individual must have some relation to the unlawful action and must be in proportion to that action. If not, the State is again violating due process. None of this is true for the individual mandate. A State-imposed individual mandate creates a law where the State can hunt down and punish a person born in the woods who has never interacted with anyone. No State has the right to hunt down and punish an individual that has never done anything. The State has no right to require such an individual to act. If this is not true, then the word “Liberty” has no meaning. If this isn’t true, then we’re all in prison now, even if we can’t see the bars. In Liberty, Van Irion
Co-Founder, Lead Counsel | 
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