Obamacare and the "living constitution"

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut.

Quite so; but what Tribe forgets is that the constitution is a living document. The constitution's meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe's interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.

I don’t see it that way in this article. This is a Constitution carpet bagger piece. The Constitution is not a “living document”, except in the precedents made on its foundation. Precedents are considered in judging constitutional law, but are not the holy word. And there is no precedent ruling in this particular abuse of the bill of rights, to my knowledge.

Mr. Tribe also complained,

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

Judge Vinson eviscerated this contention quite well in his December 31 decision, responding to a similar contention by the government. He noted that the government essentially admitted that without the insurance purchase mandate,

… the Act will have serious negative consequences, e.g., encouraging people to forgo health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry. … Thus, rather than being used to implement or facilitate enforcement of the Act’s insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or “necessary” the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate. (emphasis added)

The Constitution IS a 'living document' in the sense that it exists. Ergo its 'living'.

But as to it 'living' in the sense that its meaning changes to conform to modern norms, it's not, it's 'dead'. But there's a way to make it conform to said modern norms and that's called, 'a Constitutional Amendment'.

But therein lies the problem of the communists (I won't even dignify them by calling them 'progressives'). They could never get any of their 'new progressive laws' PASSED by the Amendment process and into the Constitution. So they need an activist commie judge or Five SCOTUS Justices to enact their 'progressive' ideas.

And Tribe's argument of SCOTUS giving Congress leeway with the Commerce Clause, what it 'means', and what they can do under it is pure bs and he knows it. Plus any Stare decisis rulings since the days of FDR is bogus on its face too. As recently as the era of the 'Rehnquist Court' SCOTUS has overruled quite a few Commerce Clause Laws passed by Congress unconstitutional and an abuse of the clause.

One of the most noteworthy was 'prolly' the Federal Gun Free School Zone Law. Which was a pet law of infamous gun grabber Di-Fi. SCOTUS overruled that by saying in effect: Stop it Congress, you're stretching the limits of the Commerce Clause. And in another case they even warned Congress about it,saying: "The Commerce Clause Doesn't Pertain to Everything".

So 'professor' Tribe knows all this and he's blowing smoke. And if Bush had tried to pass something like this the good professor would be screaming from the roof tops.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.