Dworkin on the Affordable Care Act Mandate

Ronald Dworkin has a good piece at the New York Review of Books on why the individual mandate in the Affordable Care Act is constitutional.  http://www.nybooks.com/articles/archives/2012/may/10/why-mandate-constitutional-real-argument/

He does two things well.  First, he reminds us that entitlements are no such thing but are in fact forms of social insurance in which risk of social harm is spread across the population to minimize the harm to individuals and small groups.  We use social insurance to spread risk because typically harm does not occur to a majority of individuals at the same time, despite the fact that the harm is likely to occur to a majority of individuals over time.  Hence, the need to enact social insurance programs that enlist the majority who are not presently harmed because we understand that those being harmed will never possess the political clout (i.e. they will not have the votes) to elect sympathetic legislators except at extraordinary moments in time.  This was true of the post-Civil War amendments (13-15), the FDA, the Social Security Act, the Civil Rights Act of 1964, and myriad other important social insurance or regulatory programs.  The same is true today with the Affordable Care Act and Dworkin explains the social insurance act well and concisely.

Second, Dworkin provides a legal analysis accessible to any non-lawyer of moderate intelligence that demonstrates the constitutionality of the mandate.  This forms the bulk of his opinion and is worth the read.  I enjoyed his description of the Chief Justice and Justices Scalia, Thomas, and Alito as ultraconservative.  I find the description apt.  William Rehnquist was conservative.  Warren Burger was conservative.  Sandra Day O'Connor was conservative.  The gang of four are nothing like conservative justices.  The conservatives were frustrating because of their insistence on (the conservative principles) of slow, incremental change and respect for precedent.  If only we could have those salad days back instead of the current ethos that removes the constitution from context and presumes that four persons living in 2012 can somehow divine the precise thoughts of men who died about 200 years ago.  I also find it amusing that this faction adopts the term "strict constructionist" to describe their method of constitutional interpretation when the very fact that a case is before them suggests more than one reasonable interpretation exists.  Perhaps I should not be surprised.  The legal profession is not known for self-deprecation and humility.  I do, however, want to find the talisman that allows these four old men in black robes to enter the minds of long dead men and divine the obvious and only meaning of an often ambiguous and vague document.