"An individual who bought a car two years ago and may buy another in the future is not 'active in the car market' in any pertinent sense. The phrase 'active in the market' cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government's effort to 'regulate the uninsured as a class.'"
But, as Ginsburg noted in her opinion, this comparison is off-point, because a person can plan for the purchase of a car but often is thrust into the medical industry by an accident or an unexpected illness.
Over and over again, the five right-wing justices behaved as if they started out with a determination to reject a constitutional justification under the Commerce Clause and then dreamt up legal wording to surround their preconceived conclusion.
In doing so, they treated the Constitution as some finicky legal document rather than what the Framers had intended, a vibrant structure for solving national problems.
And, as for the Framers' views regarding mandating American citizens to buy a private product, one can get a good idea of their attitude by examining the actions of the Second Congress in passing the Militia Acts, which mandated that every white male of military age buy a musket and related supplies.
That Congress included actual Founders, such as James Madison. The law was signed by George Washington, another Founder. [See Consortiumnews.com's "The Founders' Musket Mandate."]
So, despite what today's Right wants you to believe, the Framers were not hostile to a strong central government; they were not big advocates of states' rights; they were not impractical ideologues contemplating their navels or insisting on some hair-splitting interpretation of their constitutional phrasing.
Rather, they were pragmatic individuals trying to build a nation. They wrote the Constitution specifically so the country could address its pressing problems -- and match up competitively with America's foreign rivals.
Since Justices Scalia, Kennedy, Thomas and Alito don't have the real history on their side, they apparently saw little option but to make up their own.
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