December 5, 2011

Law or meaningless promises?

By Law or meaningless promises?

I’m quoted in Comstock’s magazine this morning in an article about the Individual Mandate, where I’m paired with Prof. Leslie Jacobs—whom some of you may remember was my sparring partner at a Federalist Society debate in April of this year. What’s interesting is that Prof. Jacobs makes clear once again that this case is a question about whether we regard the Constitution as a binding law or not:

The people, not the Constitution, limit the government’s powers, she says.

“The bottom line is that Congress is not going to force people to buy broccoli,” she says. “Congress represents the people, and the majority of people would have to say they wanted to be forced to buy broccoli as a way to regulate the interstate broccoli market.”

But the question is whether Congress is going to do something—the question is whether Congress can or cannot do something. The question is not about today’s political trends; the question is about the meaning of the Supreme Law of The Land. As lawyers and law professors, our concern isn’t with whether something is likely to happen; our concern is what the law means—whether the Commerce Clause gives Congress the power to force people to buy broccoli or not. The reason that’s important is because political trends change; what is once thought unthinkable is soon thought necessary. During the Supreme Court arguments over the constitutionality of the Social Security Act in the 1930s, the Roosevelt Administration said it was constitutional because it wasn’t an Individual Mandate—we have no plans, they said, to impose an Individual Mandate. Even President Obama said he was opposed to the Individual Mandate when he was a candidate. Then the political trends changed. The purpose of the Constitution is to limit politics so that when the trends change, our rights are still protected. That’s the whole point of legal rights—to protect us against politics. Prof. Jacobs will forgive us, therefore, if we don’t just accept her word that government can be trusted.

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