I was perusing through a new edited volume of essays on the legendary American Founding historian Forrest McDonald and noted with delight discussion given to one of the more difficult concepts contained in The Federalist. This is the idea of "Liquidating" the meaning of the provisions of the Constitution as discussed in #s 37, 78, and 82. Specifically the discussion in #37 is most apt to our current distressing situation where Publius discourses on the difficulty ascertaining the boundary between federal and state powers. He states, "Here then are three sources of vague and incorrect definitions; indistinctness of the object, imperfection of the organ of perception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all." Elsewhere Publius notes in the same paper, "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussion . . ."
This leads directly to a fear I have that the State AGs may ultimately do more harm than good in their suits on the individual health insurance mandate being a commerce clause violation. Granted that this mandate does seem to breach the clause by the letter and spirit of the thing but is that going to be enough for the courts who with one ruling could gut the commcerce clause almost indefinitely? The courts, if they uphold the purchase mandate as fitting within commerce clause power, which I think is likely, while probably not stating it as such, will likely defer to something like the "liquidation" process Publius observes. The people through discussion over the years will have regarded this as constitutional and we must recognize the process that has occurred would be the reasoning underlying the more technical analysis.
The notion of "liquidating" the meaning might force us to repair to the fundamental equality of the federal branches of government and the equal claim they have on the Constitution. Thus, through public debate the "the cool and deliberate sense of the community" might be reached and the mandate overturned in this fashion. Might the responsibility rest with the democratic branches, at least as first movers, to effect the determination that this purchase mandate, if allowed to stand, recognizes no limits to federal power. At the least, such an attempt by a conservative president and congress might fall a few votes short, but it is better than the constitutional precedent that seems likely to follow from the AG suits.