Lysander Spooner expert and legal scholar Randy Barnett argues that Obamacare is unconstitutional. It does not seem likely that such an argument will prevail. Over the course of American history it has become clear that the Constitution presents little obstacle to a changing political climate. This makes the Constitution basically useless. When the prevailing political climate supports the Constitution it is redundant. When the prevailing political climate goes against it, it is toothless.
One might argue that some constitutions are better than others. But as the social philosopher Anthony de Jasay has argued, perhaps the relatively good historical track record of the United States on individual liberty has more to do with the generous amount of unowned land available to its people than any intrinsic qualities of its Constitution. During the 20th century this advantage of the US has largely disappeared as governments have claimed unoccupied land as “public” (a development that does not receive the attention of libertarians that it deserves). Add mass democracy to this development and the groundwork for the predatory and redistributive state is in place.
Constitution advocates and skeptics can agree on one thing. If the individual mandate (which has been called a “tax on living” by some critics) will be ruled constitutional it is hard to imagine anything that could be deemed unconstitutional when the right political climate is in place.
One wonders how long the love affair of conservatives and some libertarians with the Constitution will continue. When the government engages in mass coercion the proper response is not to waive a piece of paper containing a hypothetical agreement but to fight back.
Further reading: Lysander Spooner – No Treason: The Constitution of No Authority