When federal judges in Fla. and Va. declared the individual mandate of the health care bill unconstitutional, most of the legal commentary in the mainstream press fell into one of two categories.  Liberals attacked the decisions as “judicial activism” that ignored 200 years of precedent and threatened scores of other important federal laws.  Conservatives championed a bold return to our country’s founding principles.  Both points are basically true and beside the point.       

To see why, you need to know a little about the constitutional law at issue, at least enough to know that no one has any earthly idea what it means.  The main legal dispute in the health care cases was over whether the commerce clause in the constitution allows the government to make people buy health care.  That clause gives Congress the authority to regulate “interstate commerce.”

When the framers came up with this provision, they lived in a far simpler America, an America with a much smaller and more limited federal government.  Over time, Congress began to pass more and more expansive and pervasive laws.  The courts almost always let it have its way.  Occasionally, the Supreme Court would strike down one law or another to remind us that there must be some line, somewhere, even though no one knew where it was.  It was not a great system but at least, as we fondly say in Chicago, it worked.  It worked because the limitations of congressional power were treated kind of like the Delphic Oracle.  No one in the country understood it, so we let nine specially anointed prophets communicate with it directly and then transmit their insights to the rest of us. 

In other words, yes, the opinions striking the health care bill departed from long-standing precedent and called into question a number of federal programs we take for granted.  And yes, they did represent a return to our founding principles.  We expect our judges to follow established ...