On February 14, 2012, I wrote a blog post titled, “And this is how a constitutional argument is born.” In the post, I observed that the constitutional (well, really RFRA) argument against the then-nascent contraceptive mandate had been created. It started in a WSJ op-ed by Ed Whelan and David Rivkin (who largely kicked off the ACA challenge). At the time, I didn’t know what to make of the argument. Mind you, this was 4 months *before* NFIB was decided. But I already I recognized its potential as a legal argument, backed by strong popular and political support. I wrote, “Let’s see how this fares from a popular constitutionalism perspective.” In other words, lets see how this argument grows and develops and flourishes.
Well in the nearly two years since, this argument is now firmly stuck on the wall. We now have a massive circuit split, not just over the RFRA aspect, but also the free exercise clause and corporate personhood. This case, which started off as a mere blip, will soon be before the Supreme Court with the potential to set a broad precedent on the topics of religious liberty and federal power.
Even Slate has to acknowledge how this argument evolved onto the wall, in an article titled “Obamacare and Religion and Arguing off the Wall.”
Surprisingly, the Times’ coverage was badly lopsided in favor of the rights of corporations. Constitutional arguments that were only recently considered “off the wall” are apparently moving into the mainstream media. We saw this process at work during the last legal challenge to Obamacare, when unprecedented arguments from conservatives eventually came to be accepted by many justices on the Supreme Court. It could be happening again, and it all begins when serious newspapers accept flawed legal arguments uncritically.
In a bizarre Obamacare redux, progressives are still mad at the Times for unbalanced coverage. Remember the false equivalency charge in NFIB? (See my forthcoming essay in the Illinois Law Review, Obamacare & Man at Yale).
Obamacare has proven that conservatives can benefit from popular constitutionalism just as much as liberals can. I’ve found this process absolutely fascinating. And yes, this will be discussed in the sequel to Unprecedented, Unraveled. I made the editorial decision not to talk about the contraceptive mandate in Unprecedented because I did not yet know where that case would go. It works for the sequel though.