In response to a circuit court of appeals’ decision that the individual mandate component of health care reform is unconstitutional (at odds with the results of another circuit), a TPM reader sent in the following on-the-mark response:
“I’m a lawyer. It’s hard to explain just how outside the mainstream this kind result would have been just 5-10 years ago.I graduated a top law school in ’02. If you had written something like this on your 1L Con Law exam you would have gotten an F, because it’s not just a wrong view, it’s a view that ignores 60 years of precedent.
To overturn the health care law is to erase the profound turn that the Supreme Court took in 1937 when it rejected the Lochner Era approach and adopted the modern/New Deal era approach to jurisprudence. The idea that we’re even having this conversation – and the Circuit courts are splitting on this question! – suggests just how far we’ve come in a very, very short time. The movement conservatives have all come out of the closet – even the ones on the federal bench. They smell a final victory: a return to Gilded Age America.”
And remember, this underlying philosophy of this “laissez-faire constitutionalism” is starkly at odds with Catholic social teaching, which sees law not in the Enlightment tradition of protecting individual rights but as “ordinance of reason for the common good, made by him who has care of the community” (Aquinas). In this earlier priod, the Catholic Church in the United States was one of the main opponents on this “due process of liberty” approach that was used to protect the rights of corporations from government interference in their affairs. Think about the Program for Social Reconstruction in 1919. Think about the alliance between Roosevelt and Msgr. John A. Ryan during the New Deal era. And think about what that means for today, and for the Catholics who support these kinds of judicial appointments so wholeheartedly.
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