Boston University Law Review
healthcare, Patient Protection and Affordable Care Act (ACA), originalism, Commerce Clause
The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.
Moncrieff, Abigail R., "Common Law Constitutionalism, the Constitutional Common Law, and the Validity of the Individual Mandate" (2012). Law Faculty Articles and Essays. 1264.