I concur with Sandy’s criticism
of the broad jurisprudential assumptions behind Justice Scalia’s opinion in the
health care case. But – and this is
relevant for any law students who are reading the case right now, as many are –
Scalia’s, and the Court’s, approaches are also defective at the level of
doctrine. I’m still waiting to hear
anyone make sense of the new limitation that the Court has imposed on the
Necessary and Proper Clause, which is, of course, the central issue in
McCulloch. Neither Scalia nor Chief
Justice Roberts were able to offer a coherent response to this core doctrinal
question.
An analysis and critique of the Court’s approach to the
Necessary and Proper Clause can be found in a short article, here. A more general review of the philosophical
basis of the constitutional challenge can be found in my new book, The
Tough Luck Constitution and the Assault on Health Care Reform. The first piece is a doctrinal analysis
written primarily for lawyers. The
second is aimed at the general reader.