3:54 PM CDT, July 3, 2012
When Chief Justice John Roberts is being excoriated by conservatives for upholding the Obamacare individual mandate -- just as when he is pilloried by liberals for concluding corporations have a right to engage in campaign spending -- the underlying assumption is that he has acted cravenly or politically. His motives are seen as sinister, and his reasoning attacked as a mere pretext. It's assumed that the meaning of the Constitution is inescapably clear and that no honest, intelligent person could avoid it.
That belief is common but wrong. Interpreting the Constitution is not like working out a math equation. It's more like analyzing a novel or a painting. There are plenty of ways to make sense of many crucial passages, and none is obviously the correct one.
In the Obamacare case, all the other conservative justices voted to strike down the mandate because it exceeds Congress' power under the commerce clause. But not all conservatives, or even conservative judges, see it that way.
A federal appeals court upheld the mandate, in an opinion written by the staunchly conservative Laurence Silberman, who was appointed by Ronald Reagan. He said the "view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market ... has no foundation in the Commerce Clause." Harvard Law professor Charles Fried, who served as solicitor general under Reagan, has argued for the same reading of that passage.
You can make a reasonable case that they're wrong and the four conservative justices are right. But you can't make a reasonable case that there is no reasonable case for the other view. The Constitution is not that clear, and it's foolish to insist it is.
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