The Corner

Constitutionality By Blindspot

Veronique links to Dahlia Lithwick’s boffo argument that Obamacare’s constitutionality is “best illustrated” — not merely illustrated but best illustrated — by the fact that “until recently” noted legal scholar Nancy Pelosi and the living constitution cultists at the White House didn’t consider the possibility it was unconstitutional. Ed Whelan makes more thorough mincemeat of all that here. Ed writes, in part, “Pardon my traditional linear thinking, but I would have thought that the best illustration of a legal proposition would be some sort of legal argument, not some inference somehow extrapolated from the supposed ‘energy’ a party devotes to defending a position.”

Ed’s of course right. But I kind of like thinking about a world where Lithwick’s argument hold some weight. For instance, George Soros has spent zero energy defending the view that all of his money actually belongs to me. Therefore it’s mine. Please make the check out to cash, George. Also, to date, Lithwick has exerted zero energy rebutting my contention that she infers her legal positions from goat entrails and the divine images she finds in seemingly random pancake shapes. I must be right!

More seriously, what’s remarkable about Lithwick, Greenhouse, and others who make this argument is how beholden they are to Groupthink and how little it occurs to them that they might be writing for audiences that don’t share their assumptions. It’s entirely possible that the court will uphold the constitutionality of Obamacare and the mandate. But when you listen to some liberals defend the constitutionality of it, the argument boils down to “it has to be constitutional because it has to be” or “of course it’s constitutional, everyone I know thinks it’s constitutional.”  Maybe because my upcoming book deals with many of these issues, I think this reveals a real dogmatism in contemporary liberalism. Elite liberals know many things, but they aren’t always clear on why they know them.

Most Popular


The Democrats’ Disastrous CNN LGBT Town Hall

A few days after Donald Trump committed the worst foreign-policy blunder of his presidency by betraying America’s Kurdish allies in northern Syria, former vice president Joe Biden, the elder statesman and co-frontrunner in the Democratic presidential primary, was on a national stage talking to CNN’s primetime ... Read More
Politics & Policy

Fox News Anchor Shepard Smith Resigns

Fox News Channel's chief anchor, Shepard Smith, announced on air Friday that he would be resigning from his post after 23 years with the network. “This is my last newscast here,” said Smith. “Recently, I asked the company to allow me to leave Fox News. After requesting that I stay, they obliged.” He ... Read More
NR Webathon

Don’t Let Michael Mann Succeed

I  enjoyed the running joke of Jarndyce v. Jarndyce in the great Dickens novel Bleak House, back when I first read it. Little did I know that one day I and the magazine that I love would effectively be caught up in a version of that interminable case, courtesy of a litigious climate scientist with zero regard ... Read More