Chris Navin

Full piece here.

Will reviewed J. Harvie Wilkinson’s new book, as Wilkinson points out what may be increasingly lost during the ‘”living constitution” vs “originalism” battle:

‘One problem with originalism, Wilkinson argues, is that historical research concerning the original meaning of the Constitution’s text — how it was understood when ratified — often is inconclusive. This leaves judges no Plan B — other than to read their preferences into the historical fog.

Constitutional pragmatists advocate using judicial power to improve the functioning of the democratic process. But this, Wilkinson rightly warns, licenses judges to decide what a well-functioning democracy should look like and gives them vast discretion to engage in activism in defense of, for example, those it decides are “discrete and insular minorities.”’

and from this NY Times piece by Jeffrey Rosen:

‘For law students and citizens who are frustrated with the way that all the constitutional methodologies fail, in practice, to deliver on their promise of helping judges separate their political views and judicial decisions, Wilkinson’s primer offers a diagnosis of the problem and a self-effacing solution. As he suggests, the great proponents of restraint in the past, like Holmes and Brandeis, embodied a spirit of humility rather than a grand theory; they displayed “modesty” about their own views “and respect for the opinions and judgments of others.” For embodying the same sensibility, Wilkinson’s book is both unusual and inspiring’

And Will’s take on what is most important to safeguard:

The Constitution is a companion of the Declaration of Independence and should be construed as an implementation of the Declaration’s premises, which include: Government exists not to confer rights but to “secure” preexisting rights; the fundamental rights concern the liberty of individuals, not the prerogatives of the collectivity — least of all when it acts to the detriment of individual liberty’

A minor quibble, but “…soft as a Shenandoah breeze?”

Related On This Site: Still fighting the battles of the 60’s…? A Few Thoughts On Robert Bork’s “Slouching Towards Gomorrah”

Catholic libertarianism: Youtube Via Reason TV-Judge Napolitano ‘Why Taxation is Theft, Abortion is Murder, & Government is Dangerous’

No cosmic theories (or grand continental ones) for George Will, thank you: …Repost-Via Youtube: ‘George Will Discusses Metaphysical Concepts’…George Will Via The Jewish World Review: ‘America’s Political Disharmony’

The classical liberal tradition…looking for classical liberals in the postmodern wilderness: Isaiah Berlin’s negative liberty: A Few Thoughts On Isaiah Berlin’s “Two Concepts Of Liberty”… From George Monbiot: ‘How Freedom Became Tyranny’…Looking to supplant religion as moral source for the laws: From The Reason Archives: ‘Discussing Disgust’ Julian Sanchez Interviews Martha Nussbaum.New liberty away from Hobbes…but can you see Locke from there?: Repost-From Public Reason: A Discussion Of Gerald Gaus’s Book ‘The Order of Public Reason: A Theory of Freedom And Morality In A Diverse And Bounded World’ Richard Rorty tried to tie postmodernism back to liberalism, but wasn’t exactly classically liberal: Repost: Another Take On J.S. Mill From “Liberal England”

Full piece here.

Click through for the arguments against the Patient Protection And Affordable Care Act, the Individual Mandate, and legal arguments against Obamacare (libertarians are leading the charge).

In the discussions I’ve had, if someone believes the idea that health-care is a right and not a commodity (some people argue that it is privilege, morally, but I’ll stick to a commodity, as with a commodity you get what you pay for in a world of limited resources), then they are usually supportive of the Law.

If upheld, I believe we would be inviting the government into our lives in a way we haven’t before, granting it the power to tax and penalize us for our very health itself (few things are more important). Because few things are more important, and because so many people do not have access to health care, or do have access but we are providing it to them inefficiently, or because some people abuse the care provided and do not have the ability to manage their lives accordingly, or because health-insurance companies are making end-of-life decisions sometimes based on the bottom line and the profit motive (which is what would happen under the new Law), because we’ve tied health-care to employment, or because costs are rising rapidly for all due in part to technology, longevity, and prescription drugs (all of which would become less available long-term under the law)…the supporters of this Law are willing to overlook the power granted to one group of people (their favored political and ideological interests) over other interests left to pick up the costs.

For many of them, the concept of a right is universal enough to enshrine their thinking into law, and the Affordable Care Act, passed as it is, will do. In digging, I sometimes find much ire against their political and ideological enemies rather than Nature herself, sickness and disease, the natural inequality of human gifts and abilities, and the unequal outcomes we allow in our society. They want the social contract to mean something quite different.

Of course, the idea that the Act won’t lead to greater fiscal insolvency and massive deficits, at a time when two other entitlement programs are increasingly insolvent, is a non-starter. It won’t.

The American Interest has a breakdown of the Supreme Court’s schedule here.

Addition: Richard Epstein has more here. More good coverage here. Price controls will drive insurers to compete to provide worst care for the sick, and destabilize health insurance markets by taking away the means insurance companies use to stay afloat.

Another Addition: The limiting principle.