The paper presents and analyzes the key legal and philosophical issues that came up in NFIB v. Sebelius. It discusses the individual mandate suggesting a legal and philosophical justification for it. It analyses the concept of interstate commerce and the interpretation of federalism as equilibrium of powers between the federal government and the states as a conception of the proper limits of the role of the state. It then presents the healthcare law as an evolution in the constitutional interpretation in the U.S. throughout constitutional history. The case contributes to the evolution of the horizontal and vertical equilibrium of powers within the United States constitutional framework. The horizontal constitutional equilibrium on the federal level moves in favor of the legislative branch. At the same time the case redefines the powers of the federal state in the vertical equilibrium of the division of powers between the federal government and the states. Throughout U.S. Constitutional history, the question of federalism has also been a question of the degree of accepting state intervention within civil society. In redefining this constitutional equilibrium among the horizontal and the vertical division of powers and by founding the individual mandate on the taxation powers of Congress, it remains consistent with a liberal conception of the role of the state, which does not engage in a wider redistributive policy. The philosophical foundation of the law on the basis of a free rider argument although bringing about some redistribution, remains within the limits of a conception of free market liberalism.
The 2011 legislative proposal by the French Government to criminalize the contestation of the denial of the Armenian Genocide, and its invalidation by the French Constitutional Council on rule of law grounds, without addressing seriously the free speech concerns underlying the case raised once more the question of the limits of protection of hate speech and of political tolerance in a democratic society. Is it legitimate for the state to intervene in order to protect its citizens from offensive speech or from the danger of arriving at erroneous opinions? Hate speech manifests itself today in various forms. European law is generally more restrictive of hate speech than U.S. law. The paper presents the different legal responses in Europe and the U.S.A. and evaluates them. Whereas most analysts take an “all or nothing” approach to these issues, considering that if hate speech is to be limited then this should concern all its manifestations, the analysis in the paper shows why we should distinguish between different types of hate speech for philosophical reasons grounded within liberalism. The paper proposes a philosophical justification in favor of punishing group defamation and against bans of political parties, and the criminalization of the contestation of historical facts.
Les Députés Pénalisent la Négation des Genocides, LE MONDE, 12.22.11. The legislation draft was considered contrary to the Constitution by the French Constitutional Council. However, the newly elect French President committed to bringing a new text before the Parliament which would pass the control of Constitutionality, see infra part II.C.
 See for example JEREMY WALDRON, THE HARM IN HATE SPEECH, 29 (2012), (considering holocaust denial together with group defamation and subversive advocacy as part of hate speech legitimately limited by a number of countries).