One of the better moments in the utter dismantling of the arguments that the ACA is unconstitutional performed by the 4th Circuit yesterday was Diana Gribbon Motz pointing out that Daniel Webster managed to give four days worth of oral argument on the commerce clause without mentioning the “activity” that conservatives have been convinced since 2009 was central to the clause’s point. David Bernstein thinks progressives should be careful about this:
I don’t think that the Democrats want to fight this battle over the 18th or early 19th century understanding of Congress’s power to regulate interstate commerce.
Well, actually, I would have no problem with the ACA being evaluated according to an “early 19th century” understanding of the commerce clause — if the most important Supreme Court opinions of that period count. The libertarian trick is to pretend that there was a consistent, uncontroversial understanding that the federal government had a very limited ability to regulate interstate commerce that was broken only during the New Deal. But, unless you believe that John Marshall and Alexander Hamilton lack the constitutional authority of Roger Taney and James McReynolds, that’s not the case. Looking at the long sweep of American history, it’s the Jacksonian and Lochner eras that are anomalous, and both were rejected as decisively as can be imagined.
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