An Open and Shut Case

At No Left Turns, Richard Adams brings our attention back to the words and wisdom of Laurence Tribe, Professor of Law at Harvard, and the supposed "clear case" for the constitutionality of Obamacare.  Tribe wrote an op-ed for the New York Times last February and argued that "There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb." Here is more from Tribe:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

But is not Tribe wedded the to theory of a living constitution?  Why then should he still care about precedent based on what the New Deal Court said 70 years ago?  The Constitution has surely evolved since that time, and it would be absurd to chain ourselves to past understandings of the law.

Also, as Richard points out in his post, we should take care to note Tribe's definition of "clear" which he gives in his book, Constitutional Choices.  The definition:

Whenever I suggest in these essays, for want of space or of humility, that one or another decision seems to me "plainly right" or "plainly wrong," or that some proposal or position is "clearly" consistent (or inconsistent) with the constitution, I hope my words will be understood as shorthand not for a conclusion I offer as indisputably "correct" but solely for a conviction I put forward as powerfully held.

But to substitute truth for convictions "powerfully held" is to say nothing about the convictions themselves.  Joseph Stalin surely held convictions "powerfully held" on the importance of the Gulags and secret police to keep the USSR under lock and key.  Tribe also does not seem to notice that his definition of "clear" is based on a prior acceptance of the idea of some of kind of permanence, because without that, he could not offer any definitions in the first place.