Keith Burgess-Jackson, J.D., Ph.D.

If you've been reading this blog for a few days, you have seen several posts in which I criticize progressive law professors (e.g., David Cole and Laurence Tribe) for thinking it obvious that the individual mandate is constitutional. I have not weighed in on the merits of the question, though I will make a prediction in due course about how the Supreme Court will rule when the issue is presented to it. (I'm analyzing Justice Anthony Kennedy's opinions in three recent Commerce Clause cases, since he is likely to be the swing vote.) There is, as any observer can see, disagreement among legal scholars (see here for a counter to Cole and Tribe) as well as among federal judges on the substantive question. This is normal. There are few easy cases in constitutional law. So what explains the progressive tendency to make easy what is not easy? Why the hubris? Why are progressives more cocksure than conservatives? I don't rightly know. It may be that progressives are more emotional than conservatives, and therefore more prone to exaggeration. It may be that progressives live in an echo chamber (known as academia). When everyone around you believes and values the same things, you lose the ability to see "the other side." Your analytical, argumentative, and critical abilities atrophy. Any ideas?