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.

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