AGAINST THE PERVERSE 'TOUGH LUCK' FORM OF LIBERTARIANISM

Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford & New York: Oxford U. Press, 2013) (DO WE REALLY WANT TO INTERPRET THE CONSTITUTION AS BEING  VOID OF COMPASSION? From the bookjacket: "Chief Justice John Roberts stunned the nation by upholding the Affordable Care Act--more commonly known as Obamacare. But legal experts observed that the decision might prove a strategic defeat for progressives. Roberts grounded his decision on Congress's power to tax. He dismissed the claim that it is allowed under the Constitution's commerce clause, which has been the basis of virtually all federal regulation." In The Tough Luck Constitution, Andrew Koppelman explains how the Court's conservatives embraced the arguments of a fringe libertarian legal movement bent on eviscerating the modern social welfare state. They instead advocate what Koppleman calls a 'tough luck' philosophy: if you fall on hard times, too bad for you. He argues that the rule they proposed--that the government can't make citizens buy things--has nothing to do with the Constitution and was in fact tailor-made to block this one law after its opponents had lost in Congress." "Koppelman also places the Affordable Care Act within a broader historical context. After the failure of the Articles of Confederation, the Constitution was written to increase central power. The Supreme Court's previous limitations on Congressional power have proved unfortunate: it struck down anti-lynching laws and declared that child-labor laws would end 'all freedom of commerce, and . . . our system of government [would] be practically destroyed.' Both somehow survived after the court revisited these precedents. Koppelman notes that the libertarian-inspired arguments used against Obamacare are radically new--not based on established constitutional principles." "Ranging from early constitutional history to potential consequences, this is the definitive postmortem of this landmark case." From the text: "Almost no one is a serious Tough Luck Libertarian. Those who make Nozick-like claims typically do so in a baldly selective way, when someone proposes to diminish their own share of the pie to benefit someone else. Then redistribution, from which the speaker usually benefits in multiple ways, becomes an intolerable intrusion on liberty. So there is a dilemma for those who invoke Nozickian arguments. You can invoke them consistently, in which case you end American civilization as we know it. Or you can invoke them only opportunistically, in which case you won't deserve to be taken seriously. The judges and attorneys who sought to invalidate the ACA faced this dilemma. They typically responded by grabbing the second horn--a constitutional limit tailored to do in the ACA, which would probably never be relevant again." "Not all libertarianism is Tough Luck Libertarianism. You can believe in vastly reduced regulation of markets while thinking that there's nothing inherently just about the way they distribute property. Friedrich Hayek, the leading proponent of this view, endorsed Rawls without inconsistency. The concerns raised by Scalia, Kennedy, and Alito are Nozickian, not Hayekian." Id. at 11. I wonder what percentage of college graduates over, say, the last twelve years (this way we can speak of the twenty-first-century college educated) have read Robert Nozick, John Rawls and/or F.A. Hayek. I suspect it is a rather small percentage.).