(note: typically I respond to comments in the comment section, but in this case I’d like to make a more detailed reply)
Commenting on my previous post, Jastonite writes:
Arguments on the merits of a law belong in the houses of Congress. When it comes to the courts and legality of legislation is in question, merit matter little. For example, if a confession has been obtained as the result of torture, it is not appropriate to argue the merits of the confession nor the merits of the torture techniques, but only whether what was done is torture and whether torture is a legal way to obtain a confession.
I agree that the proper places for legality and merit arguments are the judiciary and the congress, respectively. The point I was trying to make (and re-reading my post I see that I made it poorly, I blame it on the lack of coffee that morning) is that I don’t find arguments solely to the legality of a law (bill, rule, regulation, etc) to be persuasive independent of arguments on the merits. If you can explain to me why we can or can’t have a law (legality) but not why we should or shouldn’t have it (merits) I will remain unconvinced of your point. That isn’t to say I think legality arguments are unimportant, just that they should not exist in a vacuum. Kevin Drum uses this framework here:
So then, what’s the limiting rule? Why can’t Congress mandate that we all eat broccoli? Answer: because it’s not necessary to the proper functioning of any plausibly reasonable healthcare regulatory structure. Congress may have the power to intrude on individual liberty, but it can’t exercise that power arbitrarily. It has to be appropriate and plainly adapted to a legitimate broader goal. The individual mandate is. Forcing you to eat your broccoli isn’t.
To me, a convincing argument will base the legal case within the merit case. “We should have this law, and in fact, we can”.
Again, I understand the articles I linked to were not trying to do this, but I think they would be stronger if they had!
520 Chestnut 
We should, therefore we can. That seems like a slippery slope to me. I hear a lot of people, myself included, go on and on about the corrupt and destructive nature of pharmaceutical companies and insurance companies, yet here we are debating whether or not the government should be allowed to force, or strongly compel via monetary penalty, individuals to give their money to these private institutions regardless of their personal desire or ability. How about another example? We are split pretty damn close to 50/50 between people who support gay rights and people who oppose them in this country. The interpretation of how we “should” move forward in this regard is hardly settled. What about whether or not we “should” go to war with Iran? What about whether or not we “should” have bombed the hell out of Iraq or Libya? I get the merit argument, I really do, but it should not (in my humble opinion) EVER outrank the legality question with regards to the powers of the federal government because, as we have really already seen, that door is really hard to close. We might trust Obama and the current congress to make decent decisions which serve the interests of this country, but what if Iran launches a successful 9/11 style attack against the United States under a strongly republican congress and a President Santorum? All we have to rely on in this hypothetical scenario is this law and that irksome legality question, because we sure as hell can’t count on their interpretation of what we “should” do. If all of this means that we don’t get something that could be really helpful in the long run (such as mandatory health care, hypothetically), I’m personally okay with that. I feel much more comfortable with a government that is willing to let go of something good because it might interfere with my civil liberties than I do with a government willing to ignore, tweak, or use a loop hole to curtail my civil liberties in the name of what they believe might be in our best interest.
You misunderstand my point. Nowhere did I say “we should therefore we can”. That would be a terrible idea and very much antithetical to our system of government. There are a lot of things we probably should be doing that we haven’t because they’re not within the realm of possibility. What I said was that a convincing argument, to me, will not separate the two issues. “This is why we should do X, and we can in the context of Y”. You can flip it, but the story stays the same. “Given Y, I believe we can do X. And here’s why we should”. In either case, not just simply “Y exists”.
Again, I am absolutely not arguing that legal considerations are unimportant. Of course they are. They’re necessary, but not sufficient. A legal argument alone will not sway me to support a policy if you don’t speak to its merits. Simply telling me I can do something isn’t sufficient, I need to know why I should do it.
Saying “we can therefore we should” would be equally ridiculous. One does not necessarily follow the other. Good policy will be strong on the merits and legally defensible, but it will not be strong on the merits because it is legally defensible, or vice versa. Merit and legality need not flow from one another, but good policy will contain both. Now of course reasonable people will disagree on the merits and/or legality of policy, and this is fine. It’s why we have a congress and a judiciary. My point remains that a persuasive argument regarding policy should not ignore the policy’s merits.
To be fair, you are not saying “We should therefore we can” you are saying “We should …, and in fact, we can”. I am of the opinion that the question “should we” does not always matter if the answer is “we cannot.” For instance, let’s take the Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
So, can congress pass a law which allows Warrants to be issued without probably cause? Can Congress allow for random Warrants? No. Simply NO. Should Congress invent a reason it will be irrelevant. An argument that it “cannot be lawfully executed” is entirely sufficient for me. Any other consideration on the merits implies that some other Constitutional principle can rank higher than the relevant principle, here the Fourth Amendement.
Justice Marshal, Marbury v. Madison (1803):
“It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall he made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.”