Mainstreaming the Constitution

Mainstreaming the Constitution:


A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional.
No one?
A number of readers have taken issue with my saying that "no one" took this idea seriously. It would probably be better to say that very few experts on constitutional law thought there was much chance that the law could be successfully challenged on constitutional grounds. Some chance, but not much. And I think that is unquestionably true. The mainstreaming of this argument over the last 12 to 18 months is little short of remarkable.
This is one of those 'nobody I know voted for Nixon' things. By "no one" he means to say "no academic scholars of the law that I habitually read"; and by "mainstreaming" he means that "main stream" which is composed of constitutional scholars, Federal judges, and the like.

What he's missing is that, actually, everyone believed it was unconstitutional except for a few lawyers and leftists. The reason this argument could so quickly become "mainstream" in his technical sense is that it was already mainstream in the actual sense.

Ms. McArdle writes:
I've yet to see a major story showing how health care reform is working better than expected. So far, everything from the claims that Democrats would get a bounce in the polls after passage, to the promises that you could keep your insurance if you liked it, to the legal issues, turn out to have been overoptimistic at best.
Yes, that's true. So is this, from Professor Richard Epstein:
The key successful move for Virginia was that it found a way to sidestep the well known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.

At this point, no District Court judge dare turn his back on the ignoble and unprincipled decision in Wickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.....

Virginia has drawn a clear line that accounts for all the existing cases, so that no precedent has to be overruled to strike down this legislation. On the other hand, to uphold it invites the government to force me to buy everything from exercise machines to bicycles, because there is always some good that the coercive use of state authority can advance.
Dr. Epstein really gets to the core of the problem with the law, and the reason it is so blatantly unconstitutional. It is unconstitutional not for some technical reason attuned to some careful reading of precedent, but because it effectively eliminates all restraints on government power. Establishing a form of government that was restrained to only essential powers was the reason for writing a Constitution in the first place. If the Founders had wanted a state with unlimited power to do "good," they could have named an Imperator, and set standards for choosing one who was more-or-less reliably good.

Instead, they created a government of and for the people, most of whom won't be all that good. Such a government needs to be carefully limited. That's what the Constitution exists to do. A law that slaps aside those limits is unconstitutional at its very heart: it is poisonous to the character of the American project.

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