Let us assume that the health-care individual mandate violates a moral right, freedom of contract. If so, non-lawyers may find it mildly surprising that Sebelius was not about freedom of contract. The ruling was exclusively about the constitutional powers of the federal government vis-à-vis the states. Sebelius is a federalism case, not a civil-rights case. Had the Supreme Court decision come out the other way, states would have had the (legal) power to violate our (moral) freedom of contract.

This brings out an interesting question.  We want to limit government so that it does not violate our moral rights. But “government” doesn’t mean only the federal government. Alexander Hamilton’s dictum that “the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority” is surely optimistic. If the state of Florida forces me to buy broccoli it violates my freedom of contract just as much as if the federal government does it. When I lived in Ithaca, NY, neighbors were routinely visited by a “garbage police” who would fine them if they didn’t put the right garbage into the right bins. This was a local ordinance, not a federal law. Anyone amused by the “Brickbats” section of the magazine Reason can see that a great percentage of daily abuses are perpetrated by local bureaucrats.

I understand, of course, that we worry about the cancerous growth of the federal government, and that we would have welcomed a decision striking down the law for that reason. But that should not make us lose sight of the larger issue: no modern democracy seriously protects freedom of contract and private property rights. In Europe, Protocol I of the European human rights convention protects people only against egregious governmental theft. The convention does not protect freedom of contract at all. In the United States the contract clause of the Constitution has been moribund after the Supreme Court’s post-Lochner jurisprudence (see David Bernstein’s recent book.) And the eminent domain clause gives ample powers to the state to essentially dismantle property entitlements (see Richard Epstein’s seminal treatment.)  Worse, if I sell my house and deposit the money in the bank, under our Constitution the government can tax that money at 100% –especially after Justice Roberts’ cavalier endorsement of Congress’ taxing power in Sebelius. My bank account is not protected by the Constitution. Indeed, in the only reference to the merits of the law in Sebelius, Justice Roberts said that it was not the job of the courts to protect citizens against the consequences of their own decisions. It did not occur to him that maybe the law violated people’s freedom of contract, in which case, that is, if freedom of contract had been an entrenched right, it would have trumped majoritarian wishes. But of course, as a legal matter Justice Roberts was right: freedom of contract is not, alas, an entrenched right in our constitutional system.

So, where does this leave us? To me, our Constitution (and, I should add, every other constitution in the world) is deficient because it does not sufficiently protect contract and property.  On the other hand, I agree that the diffusion of power inherent in a healthy federal system is more likely to promote liberty than a system of national concentrated power. However, we should not forget that federalism is instrumental: we value federalism because it is more likely to protect our moral rights. The real fight is about those moral rights, and, in our effort to find the institutional design that will best protect those rights, we should not romanticize local governments, especially in  the United States, where their rights-respecting record is, to put it mildly, suspect. As to the health care law, it would be nice if it got repealed, but we must understand that we would still be unprotected against governmental intrusion.

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