Legal Commentary

Why "Defend" The Mandate?

By Big Tent Democrat

A recommended dkos diary asks why Democrats are defending it. Earlier, I asked a similar question.

Yet, I've spent the past few days defending the constitutionality of the mandate. Why am I doing that? Beyond the fact that the mandate is in fact constitutional, I think there is a larger issue at stake - the radical right wing drive to delegitimize and "deconstitutionalize" government action.

Similarly, when Kelo v.New London was decided, the kneejerk "progressive" response was to excoriate the decision. I argued that not only was the decision correct, it was also progressive:

[The dissent] simply has no support in the jurisprudence or in common sense. Indeed, it is the heart of the dangerous jurisprudence of the narrow readings of the civil rights amendments and laws by the Conservative wing of the Court. Always these Conservatives demand "findings" of past institutional discrimination by the state. Always, the Conservatives seek to limit the power of the State to act for the public good. This is more of the same. It is bad stuff. I believe that the Majority properly applied existing jurisprudence in a principled AND properly progressive way.

"First principles" matter. Not everything is sui generis.

Speaking for me only

Full post as published by TalkLeft on February 03, 2011 (boomark / email).