Michael Dorf’s generous review
in the Texas Law Review of my book, The
Tough Luck Constitution and the Assault on Health Care Reform, agrees with
me that what I call “Tough Luck Libertarianism” - the idea that if you get sick
and can’t pay for it, the state has no right to help you - played a large role
in the Court’s decision in the health care case. Dorf however thinks I haven’t given enough
weight to two other factors: federalism and “nonpartisan framing” – the presentation
of partisan arguments in nonpartisan legal terms. When these are taken into account, the
constitutional challenge no longer seems to him as frivolous as he once thought
(and I still think) it to be.
The law review has now published my response to the article,
here. In it, I agree with Dorf that it’s important
to consider, as sympathetically as you can, arguments with which you don’t agree. But there are dangers. Dorf’s generous spirit has led him to expand,
really to explode, the bounds of the frivolous.