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The Agenda

NRO’s domestic-policy blog, by Reihan Salam.

Alex Tabarrok on the Living Constitution



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Alex Tabarrok discusses Laurence Tribe’s rising interest in judicial precedent (H/T Glenn Reynolds):

Laurence Tribe writes in today’s New York Times regarding the health care law:

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.



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