Rebecca Zietlow writes an interesting piece about the health care law and democratic constitutionalism:

This paper argues that the 2010 Patient Protection and Affordable Care Act was the product of popular constitutionalism, a victory for political advocates who argued that the right to health care was a fundamental human right that warranted protection by the federal government. My thesis is contrary to the standard account of the constitutional debates over the Act, which focuses on the vociferous opposition of the Tea Party movement. During the congressional debates over the ACA, opponents of the Act echoed the Tea Party activists in their critique of the Act, but proponents expressed a differing constitutional vision, one that recognized health care as a fundamental right that warranted protection by the federal government. The progressive vision prevailed. Throughout the twentieth century, advocates for expanding access to health care engaged in popular constitutionalism and argued that health care was a fundamental human right. When enacting the ACA, congressional supporters of the Act agreed, affirming that the right to health care is a fundamental right in our constitutional tradition, and establishing a federal commitment to maintain that right.

The story is a reminder that progressives need not fear popular constitutionalism. In our country, the progressive tradition, including our progressive constitutional tradition, has played out primarily on the streets, not in rulings by politically insulated courts. Indeed, progressive constitutional change rarely, if ever, occurs without political activism. The ACA is an example of progressive constitutionalism in action through the mechanism of democratic constitutionalism. Of course, there are flaws in the claim that the ACA protects a fundamental right. The ACA does not guarantee universal access to health care, and its coverage excludes a significant number of vulnerable persons, most notably undocumented immigrants. Moreover, it is important to note that Congress does not have the power to create a constitutional right, but Congress does have the power to recognize one. With the ACA, members of Congress recognized the existence of a fundamental economic right and expanded federal protection of that right. The ACA not only expands access to health care, more importantly, it creates a presumption in favor of affordable and accessible health care for all Americans.

Let’s assume Zietlow is correct, that progressive popular constitutionalism led to the ACA. If it is defeated in the Supreme Court, can we say that libertarian popular constitutionalism, in the span of two years really, won out?

I have been thinking about writing something about popular constitutionalism and the libertarian movement leading to the litigation over the ACA (whether they win or lose) after the case is decided.