Yale Law School just held a Conference on Jack Balkin’s Living Originalism, a darn good book that merits careful reading and engagement. Jack—the most spirited, generous, smartest, funnest guy you can hope to meet in a habitually dorky profession—assembled the entire Yale School of Constitutional Theory, plus a large segment of the journalistic commentariat. Along with Judge Michael McConnell, I had the pleasure of serving (in the words of one participant) as the shabbos goy.
It was a real pleasure, but I did feel tempted more than once to switch off the lights. It is impossible to convey the constitutional establishment’s near-clinical obsession with, and hysteria over, the possible invalidation of the ACA’s individual mandate. It would, they say, amount to an unconscionable act of aggression on the democratic process. A reversal of the New Deal and a resurrection of the ancien régime of the Second Republic. A judicial coup d’état. The Constitution in Exile. (Never mind that the plaintiffs’ briefs explicitly affirm that Wickard was rightly decided.) Much handwringing arose over the elite media’s commitment to be fair to both sides even when, as here, there is no reasonable other side. The plaintiffs’ briefs are beneath contempt. Randy Barnett is a creature of The New York Times and its addiction to a false neutrality.