So I agree with both James Ceaser and Peter Lawler.  Dr. Ceaser is right that the question of whether the mandate is constitutional has not at all been settled by the Supreme Court.  You have four Justices who think that the Obamacare scheme of mandate and penalty is unconstitutional.  You have four Justices who believe the scheme is constitutional.  You have one Justice who believes that, if you squint, ignore the mandate, call the penalty that the law calls a penalty a tax and, and otherwise self-deceive, then Obamacare’s scheme of mandate and penalty is both nonexistent and constitutionally enforceable.  This is not a stable arrangement and there is no obligation on the part of anyone to pretend to buy the contortions of Justice Roberts.

But Dr. Lawler is right that the Supreme Court decision will, in the short-run, serve to dampen discussion of the constitutionality of Obamacare.  Now conservatives can say that the Supreme Court found the federal individual health insurance purchase mandate unconstitutional (and the Court did - sorta), but it is much more obvious that the majority concluded that the scheme of mandate and penalty can operate exactly as written.   Whatever is contained in the too-nuanced majority opinion written by the too-clever-for-the-country’s-own-good Chief Justice, it sure looks and feels like the Supreme Court found the mandate and penalty scheme constitutional.  Now who are you going to trust on the constitutionality of Obamacare, Romney (the 2012 ideological model) or Roberts?

That’s the very short-term.  In the longer-term, it is quite possible that conservatives will win the argument over the extent of the government’s commerce clause power within the elected  branches (and eventually within the federal courts as judges are appointed and confirmed.)  The federal judiciary’s abortion jurisprudence has been radically pro-choice for two generations, but public opinion has, in recent years moved in a moderately pro-life direction.  The problem is that November 2012 is within the short-term and the Obamacare decision makes the political constitutionalist case against Obamacare tougher - even tougher than it would be if the Court had waited until next year to take up the case.

For my part, I would add that an understanding of our constitutional disputes that arranges limited government, natural rights constitutionalists like Calvin Coolidge vs. historicist, expansive government, post-constitutional progressives like Herbert Croly and Woodrow Wilson is problematic.  There is something to looking at it like that.  The turn of the century Progressives saw the Constitution as outdated and too restraining on central government power (restraints often enforce through judicial review.).  They also saw that public respect for the Constitution meant that a frontal assault demanding either abolition or clear cut repudiation of that document was unlikely.  So they developed the idea of a “living constitution.”  This entailed praise for our flexible and developing (though not through formal amendment) Constitution that, as society changed, made the unconstitutional constitutional.  This was allegedly the key that allowed the Constitution to survive into the modern world.  Now keep in mind, the “living constitution” was originally a way to get around the Constitution, but the praise was real and loud and latter progressives bought in.  Scratch a lot of our liberals today, and you’ll see that they buy into both the praise of the Constitution and the idea that the Constitution loses all stable meaning when it conflicts with their contemporary policy preferences (even when their policy preferences today conflict with their policy preferences yesterday.)  They know that it impossible to get into the minds of the authors of the document or apply their document to the present and that Bush (and Reagan, and Nixon, and the next Republican President) “shredded the Constitution.”  This turns judicial liberalism into something more than a doctrine of expansive government.  They are against expansive government when it involves banning the termination at-will of a full term fetus.  This combination of (pretty sincere) rhetorical love for the Constitution plus the belief that the document can be endlessly rewritten to suit their present policy priorities converts the document into a license for their continued political power regardless of elections, or precedent, or the words of the Constitution itself.  The present policy orientation of a plurality of self-identified “progressives” is good enough.

Now the temptation to read one’s every preference into the Constitution is universal I guess, but which strikes you as more likely, that Scalia would vote to strike down the same sex marriage law of New York or that Stephen Breyer would vote to strike down a state law that defined marriage as between a man and a woman?

Articles by Pete Spiliakos

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