tag:blogger.com,1999:blog-7233413034415992317.post271292544038073451..comments2020-12-30T12:56:45.883-06:00Comments on ye olde republicke: The mandate and reconciliationGabriel Conroyhttp://www.blogger.com/profile/03027746942101340042noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-7233413034415992317.post-19412234152853588972011-02-04T06:18:58.775-06:002011-02-04T06:18:58.775-06:00Well, I'm certainly more convinced than not th...Well, I'm certainly more convinced than not that a federal mandate using the commerce clause is not constitutional by almost any meaningful mode of interpreting the constitution. (Even my conception of "living constitution," such as I understand it, places some constraints on governmental power.) While I don't concede the point against the mandate entirely, I'd be the first to admit that such a view of the commerce power is at the very least novel and might have disturbing implications.<br /><br />A propos your anecdote about students who do not realize the constitution lists enumerated powers: I have a friend, a fellow history grad student, who got tapped to teach a poli sci class (intro to American government) this semester. He has told me some of his students were quite angry when he explained the electoral college to him. They had simply thought the president was elected directly or at least that a state's votes went by right to the candidate who won in the state, not realizing that a "college" of electors met in the state capital to cast the "real" ballots.<br /><br />It is interesting, to me, the amount of knowledge we tend to assume when we talk with non-specialists. (It's even more interesting when I'm shown to be ignorant of something very basic. I won't give you examples, but trust me, I've said some stupid things in my life!)Gabriel Conroyhttps://www.blogger.com/profile/17566193099628849226noreply@blogger.comtag:blogger.com,1999:blog-7233413034415992317.post-68014012784418827962011-02-03T11:09:56.639-06:002011-02-03T11:09:56.639-06:00"mandating such a purchase is a "proper&..."mandating such a purchase is a "proper" exercise of Congress's power to regulate interstate insurance markets,"<br /><br />Maybe, but it's an exercise of that power that Congress has not only never actually used in the prior 221 years, it's one that they don't ever seem to have considered as within their scope of authority before. It's always good to at least pause for reflection when, after two centuries (and after more than 3/4 of a century of the expanded reading of the Commerce Clause) we suddenly discover a heretofore unrecognized "legitimate" authority. <br /><br />I think the reading of it as a legitimate exercise requires an understanding of the Commerce Clause as authorizing any and all regulation of any and all aspects of commerce, and that's neither a historically accepted nor an obvious reading of it.<br /><br />I actually do encounter students who are surprised to realize that Congress's power is not plenary, that it doesn't have a generalized police power, but has a limited scope of authority. So I know very well there are adults who don't realize that, and I know there are many who don't like that fact because it means the federal government can't do some of the things they want it to do. I suspect some of the arguments in favor of it being a legitimate exercise of power under the Commerce Clause are actually driven by the latter desire, where constitutional interpretation is being driven primarily by the desire for a particular outcome. Were Congress to require everyone to purchase a gun for self-defense, or the purchase of pornography as a marital aid, I doubt they'd be arguing the constitutionality of the mandate, yet both guns and porn are inextricably part of interstate commerce.James Hanleyhttps://www.blogger.com/profile/18431950784819780004noreply@blogger.com