What is it with progressives? They not only believe that they are right; they believe that they are obviously right. A little modesty would serve them well. Read this. The author, a progressive law professor, believes that the individual mandate is obviously constitutional. He says, for example, that "The legal case [in favor of constitutionality] should not be a close call." It's a close call. He says that "a citizen's decision to forgo insurance . . . easily falls within Congress's Commerce Clause power." It does not easily fall within that power. He writes: "If the Necessary and Proper Clause supports such an extended string of implied powers, there can be little dispute that it authorizes the individual mandate." There is significant dispute about what, if anything, the Necessary and Proper Clause authorizes. He says that Congress "undoubtedly has the authority to regulate health insurance under the Commerce Clause." There is doubt about this. He says that the individual mandate "clearly passes that test." It does not clearly pass the test. He says that "Congress had ample authority to enact the individual mandate." It did not have ample authority. He says that the individual mandate is "plainly constitutional." It is not plainly constitutional. (Boldface added.)
Do you see the pattern? As on most constitutional questions, good arguments can be made on both sides of the question whether the individual mandate is constitutional, but this law professor thinks there is no other side. There is only his side, the progressive side. Progressives incline toward arrogance. I believe it has something to do with the echo chamber of academia. Everyone around you believes and values the same things. After a while, you see these beliefs and values as normal and anything deviating from them as abnormal, irrational, or inconceivable. If I were a progressive, I would detest the stifling uniformity of academia. I would want a robust environment of conflicting beliefs and values, so as to sharpen my argumentative, critical, analytical, and interpretive skills. Progressives prefer solidarity to truth. They betray the institution that they call home.
Addendum: Here are the final two paragraphs of the essay:
In this respect, Judge Hudson and the Virginia attorney-general are situated squarely within a tradition—but it’s an ugly tradition. Proponents of slavery and segregation, and opponents of progressive labor and consumer laws, similarly invoked states’ rights not because they cared about the rights of states, but as an instrumental legal cover for what they really sought to defend—the rights to own slaves, to subordinate African-Americans, and to exploit workers and consumers.
Here, too, opponents of health care reform are not really seeking to vindicate the power of states to regulate health care. Rather, they are counting on the fact that if they succeed with this legal gambit, the powerful interests arrayed against health care reform—the insurance industry, doctors, and drug companies—will easily overwhelm any efforts at meaningful reform in most states. Unless the Supreme Court is willing to rewrite hundreds of years of jurisprudence, however, they will not succeed.
The author is either confused or mendacious. The challenge to Obamacare's individual mandate has nothing to do with federalism or states' rights, and therefore nothing to do with slavery or segregation. (The author is smearing his opponents.) It is about individual liberty. It is about the limits of government vis-à-vis individuals. And notice the author's imputation of bad motives to those with whom he disagrees. They aren't really interested in individual liberty or federalism; that's just a pretext. They're interested in protecting the profits of the insurance industry, doctors, and drug companies. In other words, they're greedy.
Two can play this stupid game. The author isn't really concerned with getting health care to those in need. He's interested in punishing the wealthy and powerful. In other words, he's envious.
Keith Burgess-Jackson, J.D., Ph.D. 