Beneath the ever-raging, dis-tractingly facile questions of electoral odds in play in the late litigation and ultimate ruling in the Supreme Court, regarding the Affordable Care Act, what is striking about this result is how it does invite us to revisit arguments affecting the act of judicial review - jurisprudence, on statutes - which flicker in and out of ascendant influence in any divided opinion of the Court. Greatly more damaged than the Right's fundamental belief, that no branch of government may intervene to remedy anomalies in the dance of the invisible hand, has been its mantra that if a word is not written in the Constitution, we may not know it.
The simplifications of this neo-originalist bar to human life have snug-gled very warmly in the timid lap of a Clarence Thomas, Sam Alito, and Antonin Scalia, boys who grew up with character disorders and sadnesses they had to project, in time, from a solecism impregnable to complaint. Their dreams reverse the fundamental principle of growth.
It has been hard to know, whether the vulgarity of their maladjustments or the sanctimony with which their clients have celebrated them, have brought the greater shame to the nation. At last, though, we see signs that their joy in stinginess works not very well, in strenuous economic times. Who could have known, that the scorched earth of their dreams should be so inhospitable to their rest? Americans now threaten to achieve justice in the distribution of the human right to health, and why the plaintiffs risked this suit in a crushing recession, must be asked by cooler heads of a later generation. But now the light bulb is on again: free government may be used.
It cannot be one's purpose here, to catalogue the horrors this portends. Rather, we see that in so far as we are going to have a living Constitution again - in which an anticipation of smartphones, say, can assuredly be inferred - then we must get about the business again, of training ourselves to ride this elegant little machine. We need to know when to resort to it, and how to know what to expect; we need to know how to influence it, and enlarge its vision. But I do not believe that Clarence Thomas and Antonin Scalia, much less Princeton University's everlasting regret, Sam Alito, can plausibly sit up there any more and not be exposed as simply refusing us a progressive branch of government.
'As in other sciences, so in politics, it is impossible that all things should be precisely set down in writing; for enactments must be universal, but actions are concerned with particulars.'
Hereafter, as before, the changing combinations of events will beat upon the walls of ancient categories. 'Life has relations not capable of division into inflexible compartments. The moulds expand and shrink.' Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters for the night is not the journey's end. The law, like the traveler, must be ready for the morrow. It must have a principle of growth.
The Growth of the Law
Lectures at Yale School of Law
Yale University Press, 1924©