What John Marshall Would Think of the ACA | RealClearPolicy

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. They find Marshall “far more restrained … than the caricature drawn by case book editors and law professors,” whose abridged accounts of Marshall’s opinions “depict him as an activist in the cause of federal power.”

via What John Marshall Would Think of the ACA | RealClearPolicy.

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