Friday, April 2, 2010

Closed Forum

No matter how unpopular and unconstitutional liberal-progressive ideas may be, their adherents are well-positioned to give the appearance that a "settled" consensus exists on anyone of a number of issues. That is because liberals overwhelmingly dominate the fora of debate, whether in the universities or in the mass media, where liberal positions are the default position, and critiques of said position are treated with an enhanced level of hostility and skepticism. So it goes as to the question of whether the insurance mandate in Obamacare is constitutional. I don't doubt that it will be difficult to use the courts to overturn Obamacare, but there really is an open question as to the idea that the mandate - essentially that you need to enter into a particular transaction as a condition of citizenship - is constitutionally rock solid. In fact, it's unprecedented. But the legal left would just as soon not argue about this, as David Kopel notes: Pretending That No Law Professors Question Obamacare

Earlier this week at the University of Washington Law School, a “debate” was held on the constitutionality of Obamacare. All four of the debaters said that the new law is unquestionably constitutional. According to moderator Hugh Spitzer, the reason that the “debate” featured only one side was that “we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional...But there are relatively few of them, and they are in great demand.” The Center for American Progress touts this story as proof of the constitutionality of Obamacare, and the comments on the blog post are a self-congratulatory frenzy about the stupidity of anyone who doubts Obamacare.

Well, all I can say is that if I had some legal problem that required modestly diligent research, I sure wouldn’t hire any of those Washington panel organizers.

Kopel goes on to site a number of prominent constitutional law professors, including non-conservative Jonathon Turley, who have questioned the constitutionality of the mandate in such fringe publications such as USA Today and The Wall Street Journal.

The Left is famous for raging against the impersonal forces buffeting workers in favor of a well-connected elite. Yet, the Left is adept at putting those forces in motion, whether through "settled" judicial precedent (unless it's a conservative position, then it's under ceaseless attack), or executive orders (unless it's one handed down by a Republican president), or EPA regulations aimed at establishing a back door carbon-tax, or the appearance of a faux-consensus on legal questions that have never been tested by the courts.

No matter how unpopular liberal governance becomes, no matter how many millions go into the streets to protest the size and scope of the government, the response is the same: a general throwing of arms into the air, and a cry "That's what the law says!" as if it had the force of holy writ, rather than the consent of the governed.

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