by Smitty
Can we get a spine implant for Orin Kerr (emphasis original)?
I’m also a Burkean conservative stare decisis guy, and I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it’s surprisingly hard to do that, and that unprincipled or unstable lines don’t last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let’s imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court’s decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections. But if we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed and my reaction would be different.
A century ago, the Wilson administration hijacked our Constitution, and effected a slow-motion Article V re-write thereof. These many trillions of dollars of debt later, stare decisis amounts to ‘staring at the deceased’, i.e. our liberty. False ideas are not rendered true by trotting them out gradually, sir.
Step up to the plate, and understand that Amendments 16 & 17, plus the Federal Reserve Act, were the seeds. The New Deal and Great Society fed and watered Leviathan. And now the time has come to ensure that the SCOTUS notes that liberty has been substantially harmed by the last century of “Progress”, and does something more in keeping with the American exceptionalism. This ‘Burkean conservative’ concern trolling is worthy of faux conservative clowns like David Brooks.
That the government can tax me to support, and I cannot sue for emancipation from, this horrid Social Security beast is all we need to know about the fecklessness of stare decisis arguments. I hope that the decision that slays ObamaCare lays the foundation for a restoration of individual liberty.
Update: now a Memeorandum thread.
