A failure of liberal jurisprudence
The shock and rationalization (It won't stand! Oh, this can't be the law!) with which legal scholars and law professors (believe me, the two aren't synonymous) greeted the district court ruling striking down the individual health insurance mandate should come as no surprise. This is par for the course -- similar to reactions to Second Amendment jurisprudence or cases such as the 8-0 Supreme Court decision upholding the Solomon Amendment (which conditioned federal aid to colleges and universities on their affording access to military recruiters).
With regard to the Second Amendment, liberals for decades considered it daft to argue that gun ownership was intended as a personal right. (Laurence Tribe was a lonely exception.) When the D.C. Circuit in the Heller case held that the Constitution did afford a personal right to bear arms, the law faculties at elite law schools scoffed. Oh, but then the Supreme Court upheld the position of conservatives, and recently extended that ruling to the states.
In the Solomon Amendment case, dozens of law professors and deans (now-Justice Elena Kagan included) assured us, and the Supreme Court, that the law was a First Amendment violation. Not a single justice agreed.
No legal scholar or activist gets it right all the time, but the batting average of liberals, especially those at the top law schools, is exceeding low these days. And to boot, their arrogant dismissal of their opponents' arguments seems inversely related to their predictive powers.
So when a liberal law professor such as Tim Jost tells us that the Virginia district court got it "wrong," liberal activists may take comfort. But what liberal professors think is utterly meaningless for the simple reason that their view of the law and Constitution ceased being in sync with Supreme Court jurisprudence some time ago.
Liberals might argue that the Supreme Court is "wrong" and the professors are "right." Yes, but the Court's decisions count and the professors' don't. It is not only misleading for these "experts" to parade about as gurus on the law, but it is an indication that something is quite amiss at supposedly elite law schools. To be blunt, what they are teaching their students is wrong.
The libertarian legal scholar Randy Barnett, who championed the challenges to ObamaCare, had the right to crow yesterday:
The days of calling the constitutional challenges to the Affordable Care Act "frivolous" and "political" are now officially over. Judge Hudson's ruling that the individual insurance mandate is unconstitutional is a milestone in the legal process of deciding whether Congress has the power to command every person in the United States to enter into an economic relationship with a private company. . .
True, today's decision is just a single ruling by one judge. But had it gone the other way, cries that such challenges were frivolous and political would again have been heard from pundits, professors, and politicians. So today's ruling is big, both legally and atmospherically.
Perhaps when law professors opine on the latest ruling, they should disclose their batting average. Then we can assess who is a credible "expert" and who is not.
Posted by: FairlingtonBlade | December 14, 2010 12:29 PM | Report abuse
Posted by: 54465446 | December 14, 2010 3:18 PM | Report abuse
Posted by: 54465446 | December 14, 2010 3:20 PM | Report abuse
Posted by: skipsailing28 | December 14, 2010 4:07 PM | Report abuse
Posted by: 54465446 | December 14, 2010 4:56 PM | Report abuse
Posted by: DocC1 | December 14, 2010 5:18 PM | Report abuse
Posted by: skipsailing28 | December 14, 2010 5:46 PM | Report abuse
Posted by: 54465446 | December 14, 2010 6:02 PM | Report abuse
Posted by: skipsailing28 | December 14, 2010 6:18 PM | Report abuse
The comments to this entry are closed.