Forget strict constructionism. Does Obama's own belief that the Constitution is a living document argue for overturning his health-reform law?

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Wrote President Obama in The Audacity of Hope, "I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document, and must be read in the context of an ever-changing world." My instinct is to disagree. But what a tempting mindset to embrace as the argument over the Affordable Care Act plays out. There is, after all, so much about today's world that the Framers could never have anticipated. Imagine how surprised they'd be by the direct election of senators, the unfunded mandates that erode state sovereignty, the size and scope of the federal government, and the expansion of interstate commerce made possible by rapid advances in transportation and telecommunications technology.

Historical evidence suggests they'd be alarmed by the diminution of state power and the degree to which the federal government is now involved in the lives of American citizens. So who cares whether or not a strict reading of the Constitution demands striking down the Affordable Care Act? Maybe it's the spirit of the document and the nature of our times that make that outcome optimal. 

Applying the Constitution "in the context of an ever-changing world," it shouldn't escape the justices that the executive branch has lately asserted sweeping powers -- the prerogative to wage war without Congressional approval, to secretly spy on Americans without a warrant, to engage in extrajudicial assassinations carried out by remote-controlled flying machines. James Madison couldn't have been expected to anticipate all that! Nor could he have imagined the unprecedented degree to which the federal government is in thrall to powerful corporate interests, as exemplified by the Wall Street bailouts and the ongoing lobbying culture that pervades Washington. The health-care industry is a particularly potent moneyed interest. And the rise of modern medicine gives those who control it more power over our lives than ever before.  

Given recent abrogations of civil liberties, the erosion of restraints on federal might, and the power that is now concentrated in the health-care sector, is it really prudent or consistent with American ideals of liberty to permit the federal government to exert ever more influence over what were formerly private decisions about health care made by less powerful, decentralized entities?

As Obama points out elsewhere, "The Founders and ratifiers themselves disagreed profoundly, vehemently, on the meaning of their masterpiece." Who is to say, given their disagreements and the aforementioned developments they never anticipated, that being true to the core principles they established doesn't require not only a writ suspending the Affordable Care Act, but new recognition that whether or not an American chooses to contract for health care (or chooses to sell a kidney) should fall under the general right to privacy that emanates from the penumbras of the Bill of Rights?

Justice Breyer believes that the charge of a Supreme Court judge is to apply the "unwavering values" of the Constitution to "ever-changing circumstances." For him, the document "creates democratic political institutions ... It divides power so that no group becomes too powerful: states, federal government, three branches of government." The federal government now enjoys more power, relative to the states and the people, than at any time in American history.

How tempting, therefore, to conclude that the "unwavering values" entrenched in 1789 require the Supreme Court to bring about a diminution of federal power in the health-care sector, and more broadly too. After all, perhaps the Framers built flexibility into the document to respond to unexpected developments like the radical expansion of the federal government and an attendant loss of local control and liberty. These are widely held to be defining challenges of our time. Why not take them into consideration?

On the other hand, embracing a living Constitution could undermine rights we want to preserve, raise interpretive problems and undermine the legitimacy of the judiciary. Some people might even suspect that ideological beliefs were playing an outsized role in shaping law.

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