James Madison’s concept of the separation of powers of the national government has always been thought to be a stroke of genius because it guaranteed a good deal of independence of the three major branches so that they could check each other, to prevent tyranny.
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The want of a central authority over commercial affairs was one of the major weaknesses of the Articles of Confederation, and a central animating purpose behind the Constitutional Convention that convened in Philadelphia in the summer of 1787.
Where, one may ask, will a Supreme Court ruling on the Patient Protection and Affordable Care Act stand in history?
Few exercises in interpreting the Constitution are as bizarre as the one that the Supreme Court and lower courts go through if they strike down only a part of a multi-faceted law, and then decide what of the remainder can survive.
For both lawyers, most of the questions coming from the bench probably will be about Congress’s powers under the Commerce Clause, though some will explore the Necessary and Proper Clause, and at least a few questions may focus on the mandate as a form of tax.