On the Constitution, Beware the Word “Clearly” – Rob Natelson – Tenth Amendment Center

On January 20, the Los Angeles Times ran an op-ed arguing that national health care mandates were constitutional. The article claimed this was true both under modern Supreme Court interpretations and under the Constitution’s original meaning.

I do not share the writer’s confidence that national health care mandates are constitutional even under the modern Supreme Court’s altered version of the Constitution — but I recognize that legal scholars differ on this question. However, the claim that the Founding Fathers would have thought the Constitution allows Congress to impose health care mandates is little short of absurd.

What really floored me was seeing that this claim was advanced by Akhil Reed Amar, a constitutional scholar I very much admire. Apparently, Professor Amar has been seriously misreading the historical record.

I know that record well: Researching and writing about it has taken much of my professional time for many years. Here are some of Professor Amar’s points, and my rejoinders:

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