Charles Lane has an op-ed out today form WaPo that is worth a read. In it he makes the case that over time the electorate will go through seismic shifts in what they expect from their government. He suggests that the pending O'care decision due out Thursday is similar to the transformation the court made during FDR's attempt to enact his progressive agenda in the 30's.
He starts by describing the academics who are stunned that O'care is even being considered by the court much less on the verge of being struck down:
What, then, led the academics to misread this case?
In a sense, they resemble the conservative leaders of the bar at the dawn of the New Deal. President Franklin Roosevelt's alphabet soup of federal programs ran counter to established doctrine denying the constitutionality of economic and social legislation, state or federal. Steeped in that tradition, many legal experts recoiled in horror at FDR's plans.
Amid a Great Depression, and under tremendous pressure from a popular president and his huge congressional majority, however, this expert consensus gave way. The Supreme Court abandoned its laissez faire understanding of the Constitution's Commerce Clause (among other provisions) so as to permit New Deal programs.
I don't think this history proves that "politics, money, party and party loyalty" crassly determined the decisions of the 1930s. If that were true, why accord them precedential weight today?
Rather, what it shows is that the United States periodically redefines the role of the federal government in society, in a process that is both political and legal — and, sometimes, more revolutionary than evolutionary. In that sense, we do have a "living Constitution."
In the 1930s, expanding federal power was innovative, promising. By blessing it, the court aligned itself with the wave of the future, in this country and globally. Ditto for the 1960s. Much of the legislation that resulted — from Social Security to the Voting Rights Act — was indeed progressive.
Today, however, there is nothing new about federal intervention — and much evidence from the past 70 years that big programs produce inefficiencies and unintended consequences.
The post-New Deal consensus about the scope of federal power has broken down amid national, and global, concern over the welfare state's cost and intrusiveness — a sea change of which the tea party is but one manifestation. Obamacare itself, which has consistently polled badly, fueled that movement.
He concludes that:
The brilliance of Obamacare's opponents lies in spotting that historical opportunity and making the most of it. The legal professoriate, by contrast, reminds me of how William F. Buckley described his arch-conservative magazine in the 1950s: "It stands athwart history, yelling Stop."
Please read it all.