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Supreme Court must rule: Obamacare sets dangerous precedent for freedom

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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.

If government goes from only regulating activity to also regulating inactivity, it will effectively go from telling individuals what they cannot do to telling them what to do. This renders residual control meaningless because it effectively removes private discretion to act, except as specifically permitted or directed by government.

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