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Supreme Court must rule: Obamacare sets dangerous precedent for freedom

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They also understood that the first premise (individual freedom) is not meaningful if the second premise (limited government) is not also true. This is because government discretion tends to crowd out the discretion of individuals. This is why the doctrine of enumerated powers is so important and why, in free societies, most laws are proscriptive rather than prescriptive in nature.

Property rights theorists call the idea that the owner of property can do as he or she pleases with it except as specifically prohibited by law “residual control.” This acknowledges that ownership is not absolute, that there are limits to discretion even over one’s own property.

But residual control nevertheless captures the essence of ownership. Under this concept, the set of possible actions an owner can take with regard to his property (all actions not currently prohibited by law) is potentially infinite. Who controls that set of possibilities makes all the difference. In free societies, individuals do.

However, if citizens are to live in harmony with others, then freedom, like property ownership, also cannot be absolute. As Oliver Wendell Holmes famously argued, his right to swing his fists needs to end where another individual’s nose begins.

Now turn Holmes’s point around. It is one thing for government to forbid specific actions while leaving all other possible actions to the discretion of the individual. It is quite another thing for government to compel an individual to take specific actions (telling people to do things they have already chosen not to do). The first is consistent with the kind of practicable freedom we now enjoy. It comports with the Constitution’s principle of enumerated government powers. The latter is not and does not.

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