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Constitutional Fun (Or, Two Can Play this Game)

Here’s a letter to the Christian Science Monitor:

Timothy Sandefur convincingly argues that Obamacare is unconstitutional (“Obamacare faces new legal challenge: Its ‘tax’ still violates the Constitution,” April 30).  Here, though, is yet another reason for the courts to strike down Obamacare: it violates the 5th amendment’s due-process clause.
Everyone concedes that, as Mr. Sandefur reports, “Obamacare was passed hastily, by lawmakers who admitted they had not read the bill.” In what universe is due process of law served when legislators vote for legislation that they have not read?  Because, as is our habit, legislation is regarded as law – and because the process that bestows upon legislation the lofty status of law is deliberation and majority votes in Congress – surely a bill passed by legislators who admit to being ignorant of the contents of the bill cannot reasonably be said to have become law through a procedure deserving the description “due process.”
While the due-process clause has never been interpreted to nullify legislation in the way that I propose here, I submit that my suggested application of that constitutional clause is reasonable and wholesome in light of the courts’ history of interpreting constitutional language expansively.  If, as the Supreme Court has held, the commerce clause can be read to govern farmers growing wheat for their own consumption, then the due-process clause can be read to govern legislators who do not read the bills they impose on their own constituents – bills that, in some real measure, deprive Americans of liberty and property.
Donald J. Boudreaux

Professor of Economics


Martha and Nelson Getchell Chair for the Study of Free Market Capitalism at the Mercatus Center

George Mason University

Fairfax, VA  22030