Tuesday, March 06, 2012

Bad News for Everybody

Andrew Koppelman

My Yale Law Journal Online defense of the health insurance mandate, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform,
got a lot of attention - more than 100,000 hits in first month – but you can’t please everyone. It elicited an eviscerating response from Gary Lawson and David Kopel, Bad News for John Marshall.

I now defend myself in Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism.

The argument has essentially left health care behind. I initially argued that in order to invalidate the mandate, you would have to throw away decades of settled law. Lawson and Kopel seem to agree with me on that, but they’re not unhappy about the prospect. So I now seem to be on the Burkean conservative side of this debate, trying to beat back radicals who want to remake the world in accordance with their abstract, untested theory.

Gee, and I thought I was on the political left.

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