In the section, I would like to outline a problem I have with Justice Scalia’s Dissenting Opinion of the Patient Protection and Affordable Care Act (ACA hereafter). At the end of the dissenting opinion, Justice Scalia writes:
The Constitution, though it dates from the founding of the Republic, has a powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably the restraints imposed by federalism and the separation of powers—are less romantic and have less obvious connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.
It is not my intention to speak to the specific legal arguments about the individual mandate or the expansion of Medicaid in the ACA decision. Instead, I want to pay attention to what is meant by liberty in the above passage and find the root of its historic expression. The dissenting judges think liberty is placed “at peril” because of Congressional overreaching. I want to understand that claim. I have my suspicions. Let me share them below.
According to the conservative take, liberty is the ability to consume whatever we want and initiate a set of relations to increase our ability to consume. Conceived in purely economic terms, the American political imagination expresses an inability to conceive of liberty in non-economic terms. This inability defuses any moral argument that trades in non-economic concerns about liberty (such as the moral argument to insure everyone and increase accessibility, economics subsumed under the moral category of justice). Contrary to the conservative position, liberty is not an unfettering of our capitalist mode of being as the political right and many moderate Democrats believe. Instead, liberty presupposes the mutual interdependency of factors in the community to provide for a world beyond the entrepreneurial. I intend to show what a phenomenological account of liberty can do for us. I will argue that a phenomenological description of liberty from the perspective of experiencing subjects reveals the true nature of liberty itself, and this claim may be seen as the major premise of my upcoming argument.
In a larger context, the reason for a philosophical analysis of American cultural imaginary should be clear. The cultural assumptions about liberty cause our inability to accept the role of the state to regulate what we can and cannot purchase, including purchasing health care through the individual mandate. Originally, the Obama administration and Democrats justified the ACA based on a reading of the interstate commerce clause that gives Congress the power to regulate an already existing commerce. The conservative argument felt this infringed upon the liberty of individuals. The ACA compels people to purchase the individual mandate, or otherwise face a “penalty” to be collected by the Internal Revenue Service. Chief Justice Roberts upheld the constitutionality of the individual mandate but rejected the state’s argument that the individual mandate be justified under the interstate commerce clause. Instead, he justified the individual mandate under Congress’s taxing power.
I am not equipped to speak to the constitutionality of the ACA’s individual mandate. However, as a philosopher, I am equipped to question what is meant by the concept of liberty motivating the conservative objection to the ACA. The entire legal argument for both parties rested on purely economic terms. Neither the state nor those against the ACA invoked a conception of liberty apart from economic terms.
My claim is that the American conception of liberty is shaped by its Lockean heritage, and so any phenomenological account of liberty must first bracket and outline what Locke intended his concept of liberty to achieve. Second, this phenomenological effort draws its inspiration from Husserl’s genetic method. In the Crisis of European Sciences, Husserl shows our inability to think of an unmathematized nature. For him, every since Galileo, the concept of nature has become sedimented. Concepts become buried under earlier ones. In other words, the initial subjective motivations that led to how those concepts acquired meaning as subjective accomplishments become lost and forgotten. The same may be said of what liberty means. Sometimes, a concept presupposes a particular meaning that has taken hold and the phenomenologist must peel back the layers of how the concept is continually constituted through history in order to reach its true phenomenological origin. In the very same way, I wish to revisit Locke and perform a similar genetic phenomenology on the theme of liberty.
So the question I want to put to the blog readers: Does this seem like a fair assessment of liberty? Is liberty constituted by Lockean thought so much that we, Americans, cannot conceive of liberty outside the nexus of Locke? If so, am I right to think that a genetic account of the concept of liberty is a meaningful strategy to get at the heart of what implicit senses of meaning are working in the background of Scalia’s dissenting opinion?
 National Federation of Independent Business Et Al. v. Sebelius, Secretary of Health and Human Services Et Al. 567 U.S. Sup. Ct. (June 28, 2012) Dissenting, p. 65. Italics mine.