Since the Supreme Court will be hearing arguments about the constitutionality of Obamacare, it might be worth looking back at Lawrence Tribe's claim that there is a "clear case for the law's constitutionality." Moreover, he takes a smart rhetorical strategy, flatterig the Court's conservatives for being above politics. Hence, he claims:
There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is -- a political objection in legal garb.
But what can Professor Tribe mean that the case is "clear"? To answer that question, we should turn to his other writings, particularly his Constitutional Choices, in which he writes:
Whenever I suggest in these essays, for want of space or of humility, that one or another decision seems to me "plainly right" or "plainly wrong," or that some proposal or position is "clearly" consistent (or inconsistent) with the constitution, I hope my words will be understood as shorthand not for a conclusion I offer as indisputably "correct" but solely for a conviction I put forward as powerfully held.
According to the good Professor, therefore, to assert that any constitutional case is clear, is to pound the table.
In fairness to Tribe, his claim may only be that the heath law is consistent with a chain of precedents that go back to the New Deal. After all, Tribe believes in a "living constitution." But, as we have noted before it might be time for Tribe to stop clinging to his horse and buggy constitution, and join the 21st century.