A Most Improbable 1787 Constitution: A (Mostly) Originalist Critique of the Constitutionality of the ACA
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Description
The United States has had two constitutions over the past 225 years. The first Constitution, which featured limited government and strong property rights, was crafted in 1787, after which it was duly ratified in a set of state conventions. The second was crafted during the New Deal by a set of Supreme Court decisions that inverted the old order by allowing large government agencies to operate freely in a regime of weak property rights. The second Constitution grants the federal government powers of taxation and regulation that are far greater than those in the 1787 Constitution. The force of this second Constitution, on both the liberal and conservative justices, was on full display in NFIB v. Sebelius (NFIB). Debate in the case blurred the lines between the two Constitutions by making it appear at critical junctures that the original Constitution supported this bold new initiative.
Source Publication
The Health Care Case: The Supreme Court’s Decision and Its Implications
Source Editors/Authors
Nathaniel Persily, Gillian E. Metzger, Trevor W. Morrison
Publication Date
2013
Recommended Citation
Epstein, Richard A., "A Most Improbable 1787 Constitution: A (Mostly) Originalist Critique of the Constitutionality of the ACA" (2013). Faculty Chapters. 372.
https://gretchen.law.nyu.edu/fac-chapt/372
