In a classic example of “something that would’ve been more useful yesterday,” Senate Democrats today held a hearing in the Judiciary Committee on the constitutionality of the individual mandate. One of the guests was Charles Fried, a prominent Harvard Law professor. When Sen. Dick Durbin (D-IL) asked a question of Fried today about the so-called “broccoli mandate” hypothetical — which gets to the question of whether the government can regulate all forms of inactivity, and if so, what if anything is off-limits? — Fried shared an answer that was refreshingly blunt, as relayed by Avik Roy: (emphasis mine)
Sen. Durbin: The point raised by Senator Lee – the “buy your vegetables, eat your vegetables” point? I’d like you ask to comment on that because that is the one I’m hearing most often. By people who are saying “Well, if the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?” We’ve heard from Professor Dellinger on that point, would you like to comment?
Prof. Fried: Yes. We hear that quite a lot. It was put by Judge Vinson, and I think it was put by Professor Barnett in terms of eating your vegetables, and for reasons I set out in my testimony, that would be a violation of the 5th and the 14th Amendment, to force you to eat something. But to force you to pay for something? I don’t see why not. It may not be a good idea, but I don’t see why it’s unconstitutional.
Well, then that’s good to know. Obesity crisis, your days are numbered!
For a bit of context, Fried was generally considered a conservative legal thinker in the past, but in 2008 he openly supported Barack Obama over John McCain, citing Sarah Palin as the primary reason for his choice. So that gives you some perspective on where he’s coming from.