A number of left-leaning folks have had great difficulty fully comprehending how the constitutional argument against the individual mandate has gained so much traction--has gone from being off-the-wall to the precipice of becoming the law of the land, and sinking the most important piece of domestic legislation in the last 50 years. Speaker Pelosi's words captured the sentiment well: "Are you serious? Are you serious?"
Well, yes, it is serious. Very much so. And I think Charles Lane's column in today's Washington Post, which you can access here, does a fantastic job (in a very short space) of explaining how this came to be. There are a number of complex theories floating around here, from Robert Dahl's conception of regime politics and the Court, to Jack Balkin's "framework originalism," to the age-old notion that old words are constantly obtaining new meanings, based on changed economic, political, and social circumstances. But the basic idea of Lane's piece is extraordinarily insightful, explaining the phenomenon and its place in the arc of constitutional law.
Randy Barnett reacts here. We may not all agree that the Constitution itself is "living" and "evolving." But there seems to be a consensus that constitutional law sure does.