In an act of bad faith remarkable even by its standards, yesterday The Wall Street Journal op-ed page attempted to cast the arch-nationalist Supreme Court Chief Justice John Marshall as a supporter of the libertarian states'-rights logic advanced by those who argue that the Affordable Care Act is unconstitutional. (Showing the depth of its knowledge of American constitutional history, the first version of the editorial also asserted that Marshall -- famously nominated and confirmed in the waning days of the lame-duck Adams administration -- was the first chief justice rather than the fourth.)
As Jon Cohn and Ian Millhiser point out, Reagan administration Solicitor General Charles Fried didn't get the WSJ's memo. Citing Marshall's great expositions of the commerce and necessary and proper clauses in Gibbons v. Ogden and McCulloch v. Maryland, respectively, Fried testified to the Senate Judiciary Committee today that "I am quite sure that the health-care mandate is constitutional." It is possible to disagree with both Marshall and Fried, of course. But the idea that nationalist interpretations of the commerce clause represent straightforward violations of its "original meaning" or that there's something unusual or distinctive about the individual mandate are silly. If any part of the ACA is held to be unconstitutional, it would be the result of substantial innovation.
--Scott Lemieux
