The claim of an unbroken historical understanding of the Commerce Clause put forward by Obamacare supporters is nothing more than a myth cooked up for the occasion. But to supporters of the ACA, it is a necessary myth, which they invoke in order to lend legitimacy to their case for the constitutionality of the law. And on this point at least, for all their anger and resentment, they are correct. It is far easier to extend Wickard v. Filburn to the case of supposed inaction if that decision were on all-fours with Gibbons.
But once it is recognized that it these New Deal Commerce Clause decisions represent a conscious and violent departure from the pre-1937 precedents, we can fairly ask whether it makes sense to take a manifestly wrong decision one step further. The original constitutional balance is far wiser than the souped-up version whose chief contribution to the welfare of the nation was to legitimate the national agricultural cartels that the states could never form acting alone.
Tuesday, April 03, 2012
Justice Kennedy's Million Dollar Question - Richard Epstein