Monday, June 04, 2012

How the Argument Against the Mandate Moved from Off-the-Wall to On-the-Wall


Quite apart from the ongoing debate over the merits, the argument over the constitutionality of the individual mandate is fascinating because it allows us to view in real time how social and political mobilizations influence constitutional change. Over at the Atlantic, I have an essay asking what factors moved the arguments of mandate opponents from "off the wall" to "on the wall" in only three short years.

I compare the example of the constitutional arguments against the mandate, which were originally considered "off the wall" by most legal academics, with the Bush campaigns' arguments in
Bush v. Gore and arguments for gun rights and gay rights. I consider the influence of intellectuals, social movements, the party system, the media and the courts.

My conclusion is although all of these players and institutions are important in their own way,the party system is the most important. Once a major political party gets behind a constitutional argument, as the Republican Party got behind the attack on the mandate, it quickly moves into the realm of the plausible, because of the many different connections and resources that political parties have.

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