Blog author: jcarter
Thursday, March 1, 2012
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In the seventeenth-century, the Dutch lawyer, magistrate, and scholar Hugo Grotius advanced Protestant natural-law thinking by grounding it in human nature rather than in the divine commands of God. As he claimed, “the mother of right—that is, of natural law—is human nature.” For Grotius, if an action agrees with the rational and social aspects of human nature, it is permissible; if it doesn’t, it is impermissible.

This view of law shaped his writings on jurisprudence, which in turn, had a profound influence on the shape of the law in the West. The Founding Fathers of America considered Grotius’s jurisprudence to be authoritative and relied on it when forming their perspectives on such areas as international law. One of the principles that Grotius advanced—and that was enshrined in our common law—was the concept that for a formal contract to be legally binding it must be entered into freely and with the consent of all parties involved.

In certain circumstances, such as when entering into commercial contracts, consent is considered to be inviolable precondition. If a person who is incapacitated and is unable to give consent or makes an agreement under duress, the contract is rendered invalid. Today, we consider this principle to be such a basic legal axiom that it seems inconceivable that anyone would challenge it.

And yet, that is precisely what the Obama Administration is doing with its inclusion of an “individual mandate” in the Affordable Care Act.

As the Institute for Justice notes in their amicus brief for Department of Health and Human Services v. Florida, “The individual mandate requires individuals to enter into contracts of insurance that would never be enforceable at common law because they would violate an essential element of all enforceable contracts– mutuality of assent.”

The Founding generation that drafted and ratified the Constitution never meant for the federal government to possess the power to coerce individuals engage in commercial transactions against their will. Coercing commercial transactions is antithetical to the foundational principle of mutual assent that permeated the common law of contracts at the time of the founding and continues to do so today. The Founding generation recognized that this principle was critical to protecting individual liberty. It would never have given, and in fact did not give, Congress, through the guise of the Commerce Clause, the power to gut the foundation upon which the entirety of contract law rests.

Constitutional law professor Elizabeth Price Foley argues in this brief video that the mandate not only violates the doctrine of mutual assent but, if upheld, would establish a precedent that the government can impose other forms of contractual relationships on citizens against our will.

(Via: Ed Morrissey)


  • RogerMcKinney

    Nice to hear a mention of Grotius! He was very important in Western history but seems to have been forgotten.

    • Charles Martel

      Even in Morocco, the French colonials remembered: there was a small street called rue Grotius just off the corniche in Tangier.  At some point in the last few decades it was renamed rue el Antaki. 

  • Phil Steiger

    I could not agree more that this encroachment should be stopped.  But I am interested – what is the answer to the charge that this mandate is not that difference from a state’s mandate for something like driver’s insurance?

    • http://www.jordanballor.com/ Jordan Ballor

      “If you drive you must have car insurance” is categorically different than “If you breathe you must have health insurance.”

      • Phil Steiger

        That seems right.  A requirement attached to a privilege is a different thing altogether than a mandate attached to existence or in opposition to a natural right.