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That is really the fundamental question at stake in the Obamacare case. Many countries are governed by unwritten constitutions, a patchwork of court decisions, legal and political precedents, laws, and customs that shape the boundaries of government rather than any single document. Over the past eighty years, the United States has increasingly moved to that system as well. But even the post-New Deal, post-World War II consensus has always tried to appeal to our written Constitution for authority, which its champions have pretended to revere as a living document.
This case is the biggest conflicit between the unwritten constitution that gives the federal government virtually unlimited power to, as Laurence Silberman puts it, “forge national solutions to national problems” and the actual Constitution on which Washington bases its legitimacy, a document that created a limited federal government of enumerated powers.
Those powers, by the way, are delegated by the states and the people. Who delegated the power to impose an individual mandate? In our system, only through a supermajority of states can the people delegate powers to the central government. Are we now a unitary state in which new powers can be delegated simply by giving one candidate running on a particular platform 53 percent of the national popular vote? (And even that delegation would be dubious, since Obamacare wasn’t even written when Barack Obama was elected president, and he originally campaigned as an opponent of the individual mandate.)
These are the questions the Supreme Court will answer. And as I argue today on the main site, we can’t be sure even the Republican-appointed justices will get them right.