He disagrees with the conservative arguments against the use of the commerce clause to regulate interstate activity - including the "inactivity" allegedly regulated in the Affordable Care Act:
As a political argument, that resonates: “Don’t Tread On Me” trumpets
the imperishable spirit of American liberty. But as a constitutional
argument, it would imbue judges with unprecedented powers to topple an
exhaustively debated and duly enacted federal law and to make the
determination that the decision not to buy ice cream can be neatly
severed from the decision to buy chocolate or vanilla.
In curbing federal excess, courts risk lessening our national economic
strength. That strength resides partly in the national aspects of our
founding document, among them the now maligned commerce clause and the
newly mistrusted supremacy clause, which gives preference to federal
over state law when there is a conflict. States’ rights are important in
many spheres, but the benefits of a national economic policy must also
be considered. A vibrant economic order requires some political
predictability, and the prospect of judges’ striking down commercial
regulation on ill-defined and subjective bases is a prescription for
economic chaos that the framers, in a simpler time, had the good sense
to head off.
If one simply wishes to repeal the law, repeal the law, don't use the courts to negate any future effort to find national solutions to national problems.
He also disagrees with liberal arguments that the broad language of the Constitution encompasses rights that go beyond those clearly written in the document:
Just like the opponents of the Affordable Care Act, the proponents of reproductive choice and same-sex marriage have strong arguments — but they are political, not constitutional. What are the consequences when liberals shortchange democratic liberty in favor of judicial expansion of unenumerated personal rights? Well, for one, creating constitutional rights without foundation frays the community fabric and, with it, the very notion that the majority can enact into law some expression of shared values that make ours a society whose whole is more than the sum of its parts. In pushing a constitutional vision of autonomous individuals divested of location in larger social settings, liberals risk weakening the communal values and institutions that best afford our most disadvantaged the chance for a good life.
The common thread in each argument is that the constitutional factors that have allowed for the development of strong communities that both share values and are willing to work together to solve mutual problems has been weakened in favor of - what he might call - radical individualism.
Here are readers' responses, including one that brings up the 9th Amendment - which we discussed in 2301.
If one simply wishes to repeal the law, repeal the law, don't use the courts to negate any future effort to find national solutions to national problems.
He also disagrees with liberal arguments that the broad language of the Constitution encompasses rights that go beyond those clearly written in the document:
Just like the opponents of the Affordable Care Act, the proponents of reproductive choice and same-sex marriage have strong arguments — but they are political, not constitutional. What are the consequences when liberals shortchange democratic liberty in favor of judicial expansion of unenumerated personal rights? Well, for one, creating constitutional rights without foundation frays the community fabric and, with it, the very notion that the majority can enact into law some expression of shared values that make ours a society whose whole is more than the sum of its parts. In pushing a constitutional vision of autonomous individuals divested of location in larger social settings, liberals risk weakening the communal values and institutions that best afford our most disadvantaged the chance for a good life.
The common thread in each argument is that the constitutional factors that have allowed for the development of strong communities that both share values and are willing to work together to solve mutual problems has been weakened in favor of - what he might call - radical individualism.
Here are readers' responses, including one that brings up the 9th Amendment - which we discussed in 2301.
