ORRIN KERR, a professor of law at George Washington University, clarifies a previous post at the Volokh Conspiracy objecting to Judge Vinson's decision invalidating Obamacare on constitutional grounds:
The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Todays constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinsons opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important.
I agree with Mr Kerr that the freshest, topmost layer of the body of constitutional interpretation built up over the ages by the myriad sages of the Supreme Court isat besttenuously connected with the meaning of the hallowed document ordinary Americans imagine to govern their republic. What I don't understand is Mr Kerr's objection to mixing respect for precedent and original meaning in rendering judgments about the "constitutionality" of legislation.
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