Abstract

http://ssrn.com/abstract=1751711
 


 



Federalism & Separation of Powers - 'Health Laws of Every Description': John Marshall’s Ruling on a Federal Health Care Law


Robert G. Natelson


The Independence Institute; Montana Policy Institute

David B. Kopel


Independence Institute; Denver University - Sturm College of Law

June 10, 2011

Engage, Vol. 12, No. 1, pp. 49-54, June 2011
University of Denver Legal Studies Research Paper No. 11-03

Abstract:     
If John Marshall, the greatest of Chief Justices, were to hear a challenge to the constitutionality of the Patient Protection and Affordable Care Act of 2010, how would he rule? Would the nationalist justice who, according to the New Deal Supreme Court, "described the Federal commerce power with a breadth never yet exceeded," agree that federal control of health care was within that power?

In the fictional opinion below, Marshall rules on the constitutionality of a bill similar to the Patient Protection and Affordable Care Act. We constructed this opinion chiefly from direct quotation and paraphrases of Marshall’s own words, as expressed in his judicial pronouncements, his newspaper articles, and his speeches at the Virginia ratifying convention.

Our study of the full text of Marshall’s works revealed him to be a far more restrained justice, who relied far more on established authority, than the caricature drawn by case book editors and law professors whose expurgated versions of his opinions depict him as an activist in the cause of federal power. One striking illustration is the treatment afforded Marshall’s own statement in Gibbons v. Ogden that "health laws of every description" are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times.

Number of Pages in PDF File: 6

Keywords: John Marshall, Affordable Care Act, Gibbons v. Ogden, Health Care

JEL Classification: K20

Accepted Paper Series


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Date posted: February 1, 2011 ; Last revised: April 26, 2012

Suggested Citation

Natelson, Robert G. and Kopel, David B., Federalism & Separation of Powers - 'Health Laws of Every Description': John Marshall’s Ruling on a Federal Health Care Law (June 10, 2011). Engage, Vol. 12, No. 1, pp. 49-54, June 2011; University of Denver Legal Studies Research Paper No. 11-03. Available at SSRN: http://ssrn.com/abstract=1751711

Contact Information

Robert G. Natelson
The Independence Institute ( email )
727 E. 16th Ave.
Denver, CO 80203
United States
303-279-6536 (Phone)
HOME PAGE: http://constitution.i2i.org
Montana Policy Institute ( email )
67 W Kagy Blvd Ste. B
Bozeman, MT 59715
United States
David B. Kopel (Contact Author)
Independence Institute ( email )
727 East 16th Ave
Denver, CO 80203
United States
303-279-6536 (Phone)
303-279-4176 (Fax)
HOME PAGE: http://www.davekopel.org
Denver University - Sturm College of Law
2255 E. Evans Avenue
Denver, CO 80208
United States
HOME PAGE: http://www.davekopel.org
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