Taxes on Constitutional Rights

One project that I’ve blogged about and might return to involves alternative remedies for constitutional rights.  I’ve pointed out that you could have a right protected by a tort remedy, a supermajority override rule, or a super-penalty if the right is violated.

I also pointed out that you could have a right that can be exercised subject to a tax.  Now Chief Justice Roberts has officially enshrined one of these into law.  You have a constitutional right not to have health insurance, but you can be taxed for exercising that right.

UPDATE:  On a separate note, good job by CNN and Fox to mess up and say initially that the mandate was unconstitutional.

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2 Responses

  1. birtelcom says:

    Although much early commentary is pointed toward the idea that Roberts succeeded in setting a precedent for a new limit (of some sort) on the federal government’s Commerce Clause power, it’s important to note that from a stare decisis point of view, everything Roberts has to say about that issue in this case is dicta, easily ignored by any future court that lacks a majority for this particular point of view. Upholding the mandate on one of the available grounds renders the discussion of the other possible grounds academic and of no compelling precedential value.

  2. Ken Rhodes says:

    I’m continually amused by this whole “penalty/tax/whatever” terminology brouhaha.

    For 37 years I lived in Virginia. Every time I renewed my driver’s license I had to answer this question: Do you have auto liability insurance?

    I had the right not to have the insurance. If I did not have the insurance, I had to pay a fee to the state every year. The fees thus collected went into a pool to protect innocent victims of traffic accidents caused by uninsured motorists.

    The payment of the fee was not a “substitute insurance.” If an uninsured motorist inflicted harm, he was still 100% responsible for paying for restitution. But, recognizing that making him “responsible” would not guarantee that he could pay, the state created the “uninsured motorist fund” so that the victims could have a secondary source for restitution.

    If the Dems had simply framed the issue properly, neither as a “penalty” nor a “tax,” but merely as an “uninsured risk fee pool,” we’d have saved CNN and Fox a lot of embarrassment.