By Thomas K. Lindsay
Across the country, state legislators have introduced over 200 measures aiming to prevent the enforcement of federal laws and regulations they believe to be unconstitutional. Here in Texas, 25 such measures have been filed. But these efforts face long-ago-constructed hurdles, one of which is the law-school orthodoxy regarding the constitutional vision of the nation’s greatest Supreme Court chief justice, John Marshall. Both defenders and critics of federal expansion tend to view him as a champion of Big Government. Against this tide stand two legal scholars, Robert Natelson and David Kopel, who argue that both sides get Marshall wrong, and that we must get him right to reeducate ourselves in the constitutional basis for individual liberty and limited government.
In a thought-provoking exercise, Natelson and Kopel delve into the seminal opinions currently seen as proof of his judicial activism. They construct what a Marshall opinion on Obamacare would look like, drawing “chiefly from direct quotation and paraphrases of Marshall’s own words.” They ask, “Would the nationalist justice who, according to the New Deal Supreme Court, ‘described the Federal commerce power with a breadth never yet exceeded,’ agree that federal control of health care was within that power?”
Their answer is a resounding no. CONTINUE READING HERE