Thursday, March 29, 2012
A good WSJ editorial.
I am unexpectedly encouraged by the tenor of the oral arugments as I have heard them reported and on the basis on listening to the second day of arguments. I wish this all did not turn on what Justice Kennedy decides, but there it is. Perhaps he shall have to retire and listen for that small, still voice of the median voter. He at least seems to get that requiring people to enter commerce in order to regulate it would amount to an important, even "fundamental" expansion of federal power quite beyond anything imagined before the progressive remodel of the Constitution which introduced the philosophical equivalents of formica, shag carpeting, cheesy track lighting and prohibitive heating bills.
I feel some sympathy for Justices Breyer and Sotomayor. One can hardly blame them for thinking that it is rather later in the day to begin worrying about expansions of federal power. One did get the feeling that it would be difficult to come up with something that Breyer would think the federal government could not do under his preferred reading of the commerce clause. He might be the first person I have ever heard who managed to sound both like a voice in the wilderness and really self-satisfied at the same time. Maybe it takes years at Harvard to perfect that.
If the court really does strike down ObamaCare on commerce clause grounds, it will truly be a watershed moment in American constitutional history, which is a reason for suspecting it won't happen, but one dares hope. Whowouldathunkit, a constitutional moment (Professor Ackerman, call your office!) in my lifetime, and one that would be good, rather than bad. I would have to revise my whole Weltschmerz weltanschuuang (maybe that should be one word? Or is there a better term?), but I would be happy to do it. I would have to resist feeling too much schadenfreude (sorry) at the liberal (is there a German word for a great and widespread shitting-of-bricks? It seems like there should be) that would follow, indeed is already beginning. Anyway, I give the future of American constitutional government even odds, better than in a long time. But one should not get one's hopes up too much.