One last thing. I wrote this:
- That being said, those worried about the impact of the ACA on the government’s power under the commerce clause should consider today a victory.
- Those only pretending to be worried about constitutional ramifications, but really just looking to smack around a president they don’t like, should consider today a defeat. Which one did you see more of today?
I should have added that Randy Barnett, the father of the broccoli argument, is a member of the former group. And that is to his credit. However, I simply cannot let this line go (emphasis mine):
From then until today, most law professors have taught that the power of Congress to regulate the “national economy” is limited only by congressional restraint, which means that the power is unlimited.
For someone who seems to consider the constitution and the opinions of the founders to be an important things, he certainly doesn’t hold them in high regard. Indeed, the most important limiting principle ever articulated is that of our form of government. In a representative democracy, congress is limited by their own restraint because their failure to act in a limited manner will result in electoral defeat. Friends of the Broccoli don’t seem to understand this. Or perhaps they don’t trust the electorate to fulfill our end of the bargain. And perhaps that concern is warranted. But the point is that we are the limiting principle.
520 Chestnut 
If your theory is true, what do you make of Article 1 Section 8, the Nineth Amendment, and the Tenth Amendment?
I read them to be precisely what they are, limits on government. I agree that they apply! My point is that Barnett and others don’t agree that a more fundamental limiting principle also applies: electoral force. The founders chose representative democracy as the system they wished to pursue precisely because it had this fundamental limit “baked in”. They further limited it via the constitution. In their vision our system of government would be limited by the people (electorally) and by the constitution. The will of the people would in turn be limited by government (republic vs pure democracy).
I’m not arguing that constitutional limitations don’t apply, simply that electoral force is also limiting. It did not come about by accident.
I suppose I was asking something more along the lines of, “to what rights and powers do the Ninth and Tenth Amendments refer?” Obviously electoral limits do apply, but what are the constitutional limits of congressional power? What powers are reserved for the States? What are some non-enumerated rights retained by the people which Congress cannot deny? What is one law Congress cannot pass because it would be exercising a power not delegated to it but reserved for the states?
[…] their blue shirt because the color blue is disruptive to society, etc, etc. We’re back to limiting principles now, and I have a feeling readers will already know where we all stand on […]