Stephen Griffin at the Balkinization blog comments on recent press coverage of the impending decision and finds the journalists & lawyers commenting on the expected ruling woefully ignorant of how, historically, Constitutional law is determined.
Charles Lane's WaPo column of yesterday illustrates this by reducing the dispute over the ACA to a conflict of values. It's liberty vs. egalitarianism according to Lane (with an apparent assist from Stephen Carter). This is a good example of how some political theorists read the Constitution, as an abstract "ordering of values." But not lawyers. Funny thing is, we think the Constitution is actually a law. As law, the Constitution could only be effective across a wide range of disputes once it was implemented by the judiciary in a system of common law precedent. Lane's approach simply junks the common law in favor of going right to the supposedly underlying values. This has the effect of proving Amar's point that the only way the Court could invalidate the ACA is by ignoring decades of multiple precedents, something that courts do quite rarely.Nevertheless, the expected overturning of the law and the concomitant legal, policy and political turbulence sure to follow in the ruling's wake should be breathtaking and something we, as a nation, haven't experienced since the 1930s when many of FDRs New Deal laws were challenged and determined to be unconstitutional by a reactionary court.
History doesn't repeat but it does, on occasion, rhyme.