Over the last week of March, the United States Supreme Court heard three days of arguments over the constitutionality of the Affordable Care Act (ACA)—President Barack Obama’s historic health-care reform law. This means that sometime during the last week of June 2012, the justices will hand down a decision in that case that, regardless of the finding, will move the court to the epicenter of the national debate about government and power. Based on those oral arguments, the high court seemed prepared to strike down at least the “individual mandate”—the requirement that nearly all Americans obtain health insurance or pay a penalty—if not the law in its entirety. When the decision arrives, historians can begin to weigh in on whether all this represents the court declaring war on President Obama, or President Obama declaring war on the court.
Meanwhile, during the apprehensive weeks between March and June, America tried to wrap its arms around the idea that it doesn’t much care for the ACA—together with the prospect that the Supreme Court would strike down a landmark piece of social legislation for the first time in seventy years. In political terms, the choice seems to be between an overreaching Congress and an overreaching court, and the ultimate gamble is over what kind of overreach the public prefers.
Against the backdrop of this tentative soul-searching, some of the country’s most prominent legal scholars gathered at Yale Law School at the end of April to talk about constitutional interpretation. The gathering was occasioned by a recent book, Living Originalism (Belknap