The Supreme Court wrongly concluded that Obamacare can stand. But just because a majority of the Supreme Court declares something to be “constitutional” does not make it so.Before we go too far with that, I'd suggest that it's important to think about how his statements differ from those we've heard from the left about Citizens United or Bush v Gore. Or how about going back in history and asking whether - in 1896 - it would have been correct to say that Plessy v. Ferguson was constitutional.
The truth of the matter is that when the Supreme Court says something is constitutional, in all practicality, it is constitutional. In other words, it becomes applicable law...end of story unless and until they change their minds.
That creates a tension because - since the Supreme Court is still made up of 9 imperfect human beings - they sometimes make the wrong call.
I think this tension is created because we tend to want to venerate what is constitutional to some rarified state of infallibility. I liken it to how some Catholics see dispensations from the Pope and how many Protestants view the Bible. As human beings we long for some set of rules that we can point to and say they are definitive.
But we're fooling ourselves when we go there. It doesn't take much reflection to see that even the Constitution itself was deeply flawed from the get-go. It is NOT the stuff of "divine inspiration." And to assume that either the document itself or its interpretations by the Supreme Court carries that kind of weight is a fools errand.
What we have in a democratic republic is instead - as James Fallows wrote - a set of norms with which we the people comply.
Liberal democracies like ours depend on rules but also on norms -- on the assumption that you'll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy.The risk - and potential danger - of questioning the constitutionality of what the Supreme Court declares is constitutional is that it undermines those norms. There might be a time and place for that. But we'd better be VERY aware of the consequences.