HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, July 10, 2013

Summer Reading--"The Tough-Luck Constitution"

Hello all – I am back from my teaching adventures in Italy, followed by a bit of a vacation, and am ready to resume regular blogging.  I hope everybody is having a great summer, it is good to be back in the saddle again in Spokane.

Just finished reading Prof. Andrew Koppelman’s new book “The Tough Luck Constitution and the Assault on Health Care Reform.”  Professor Koppelman nicely lays out the libertarian roots of the argument against the constitutionality of the Affordable Care Act’s individual mandate, explains how the Supreme Court’s conservatives came to embrace the argument, and puts forth his belief that this view of limited government power has nothing to do with the Constitution, but everything to do with contemporary politics.  I particularly like his christening of the libertarian position on these issues as “tough luck” philosophy; if you fall on hard times, too bad for you, and the federal government is powerless to help you.  He also aptly points out that virtually nobody actually follows this philosophy in their own life or in politics, but it fits well with the mythology of the rugged American individual, pulling himself up by his own bootstraps.

The book is written for non-experts, although having some legal background would be helpful in understanding the broader themes (he notes that other efforts by the Supreme Court to limit congressional power have been ill-advised and short-lived; such as its striking down of anti-lynching laws and child-labor laws in the pre-New-Deal era).  It is short, and although I know it is not exactly summer beach reading, it is well worth your time if you have any desire to understand the constitutional arguments about the Affordable Care Act.


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