9 Comments

Carl Eric Scott
March 28th, 2012 | 1:56 pm

The mandate needs to be overturned on commerce clause grounds. And yes, that means that state mandates would be constitutional. Unless the state constitutions come to stipulate otherwise.

Anthony Kennedy wants to be your hero. IF he says the mandate’s unconstitutional, it will be his moment to try to persuade conservatives, libertarian, and all Americans that his horrible presumption of liberty “interpretive” theory is the lodestar of the Constitution.

Do you want to be governed by the de facto A Theory of Liberty lurking somewhere in Kennedy’s head, and waiting for its future equivalent of John Rawls to spell it all out?

I didn’t think so. Stick to the Constitution. That’s our social contract, for better or for worse.

Peter Lawler
March 28th, 2012 | 2:34 pm

To avoid any confusion, let me say that Kennedy is the very opposite of my hero. Same with Barnett.
The narrower the reason for overturning the better. It shouldn’t touch state mandates. STICK WITH THE CONSTITUTION is right, which is a lot more specific, of course, than the untethered word liberty.

Pete Spiliakos
March 28th, 2012 | 3:43 pm

I think the most likely outcome is a worst of both worlds scenario. Government-run health care is the economic issues Grail for the left-of-center. Kennedy must know that if he strikes down Obamacare’s mandate he is going to be demonized by liberal-leaning media institutions and the academy (both legal and historical) and there will be no forgiveness. This isn’t HELLER or CITIZENS UNITED or BUSH v. GORE.

My guess is that Kennedy postures about limited federal powers and presumptions of liberty but explains that the health care mandate is some kind of special exception because…he says so. Then we go to the presumption of liberty and such when there is a case for the Supreme Court to impose SSM on all the states.

Robert Cheeks
March 28th, 2012 | 3:58 pm

If I understand correctly the ‘mandate’ forces Americans, by means of central state coercion, to enter into a contract we may or may not agree to. Of course that’s unConstitutional. Hell, it’s illegal, and we don’t need the Supremes to tell us that.
But then aren’t we being forced to enter into similar ‘contracts’ against our will(?) when we are required to participate in Social Security and Medicare?

Carl Eric Scott
March 29th, 2012 | 7:21 am

Peter, no confusion here. The “you” I’m speaking to is some libertarian-leaning type.

djf
March 29th, 2012 | 8:28 am

@Carl, don’t you mean “A Theory of Justice”?

Anymouse
March 29th, 2012 | 3:31 pm

Heck, Kennedy us not my hero either.

Heck, when I heard about his justification for legalizing sodomy, it made me sick. j/k

But seriously, I definitely agree with Carl Eric Scott. This is simply unconstitutional, no more and no less.

paul seaton
March 29th, 2012 | 6:59 pm

Djf, I suspect Carl was being witty and creative, melding Kennedy’s ‘tie goes to liberty’ jurisprudence with Rawls’ well known title.

Carl Eric Scott
March 29th, 2012 | 10:00 pm

Paul has my number.

And the reason I put it this way is that the logic of Kennedy’s jurisprudence leads him to need a Rawls-like project of constructing what the most coherent conception of liberty would be.

Kennedy has made it clear (http://www.amazon.com/Justice-Kennedys-Jurisprudence-Necessary-Meaning/dp/0700616624) , that in apparently slight but significant contrast to the way his jurisprudential forerunner William Brennan conceived of the idea of liberty evolving in unforeseen ways, that what changes and evolves is our ignorance. What liberty is does not change, only our ability to understand its full ramifications. The Constitution is not “Living” an unpredictable evolution, rather, we are evolving to better and better see what the logic of liberty (encased within it by the 14th) requires. It’s true that in Lawrence he suggested that each generation will have its own understanding of liberty, which sounds exactly like Brennan and the old-time Progressives like Wilson, but I think his ultimate position is as I’ve described.

So his jurisprudence needs a Political Philosopher to do for Liberty what Rawls supposedly did for Justice.

If I knew the emoticon for GROAN, I would use it here.