[domeffire]

"To a remarkable degree, the challenges to the Affordable Care Act reflect an effort to codify legal nostalgia as legal doctrine. The opinions of some lower courts striking down the individual mandate, as well as the arguments of the States and private plaintiffs in the Supreme Court urging that result, repeatedly hark back to bygone eras of American jurisprudence. This legal facsimile of reincarnation seeks to revive not just the long discredited doctrines invoked by an ossified Judiciary to thwart the New Deal. It goes back further still, to the dogma of an earlier time when the Judiciary regarded its principal function as the protection of private property, even at the expense of social justice, democratic values, and other individual rights."



http://balkin.blogspot.com/2012/05/l...ivism-and.html