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Results, Not Process

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Tom Maguire, engaging in Principled Opposition to “judicial activists” who came up with the idea that marriage discrimination is inconsistent with the equal protection of the laws: “I just wish that we could have a bit more respect for the democratic process and settle this in legislatures rather than employing this Democratic process of legislating through the courts.”

Shorter Tom Maguire, today: “I don’t care about the federal government’s constitutional authority to regulate interstate commerce, I don’t like the mandate provisions of the ACA, so they must be unconstitutional!   How dare the courts not intervene to strike down the legislation passed by democratically elected majorities and supermajorities!”

Admittedly, as I’ve said before, part of me wishes that Maguire’s position (although I believe it is very wrong as a matter of constitutional law) would prevail, because holding the mandate unconstitutional would (given the other plainly constitutional and very popular provisions requiring that insurers not deny insurance based on pre-existing conditions) destroy the private insurance markets, which would just lead to the state-run insurance that has proven in many other countries to provide better results for less money. Which, again, would be clearly constitutional unless you want to argue that Medicare, Social Security, etc. are also unconstitutional. So, hey, good luck libertarian litigators! Try to get DOMA struck down while you’re at it.

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