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Balkin on the Commerce Clause

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I cited it in my Prospect piece yesterday, but for people interested in the history of the Commerce Clause, I strongly recommend Jack Balkin’s forthcoming article. I would add the caveat that I don’t think that Balkin’s liberal originalism overcomes the objections I have to originalism (in whatever variant). I don’t believe his evidence is sufficient to establish that there was an uniform “original meaning” of the commerce clause. There is, as Paul has argued several times recently, no technical legal answer to whether the individual mandate is unconstitutional. (And I don’t think that Balkin would disagree.)

However, in context, his debunking of conservative attempts to establish an alternative original meaning are more than sufficient. Some conservatives would like to portray the debate as one between “federalists” who are bound by the Constitution and defenders of the constitutionality of the ACA, who are merely being expedient. But the very narrow conception of the Commerce Clause that the Supreme Court adopted in the late 19th and early 20th centuries was not the dominant view at the time of the founding. Marshall’s approach in Gibbons v. Ogden was, if anything, more prevalent at the time of the founding. And I certainly agree with Balkin that seeing the central purpose of the Commerce Clause as giving “Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action” is both more normatively attractive and provides a better explanation for the Court’s actual jurisprudence than alternative approaches do. And under this standard, the constitutionality of the mandate is an easy case: the regulation is essential to a legitimate broader regulatory regime and solves am obvious “free rider” problem.

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