Having your judicial cake and eating it too

Follow-up to yesterday's post: my good friend, the US historian Mark Byrnes, blogged yesterday, too, about what Chief Justice Roberts may be up to with his nuanced opinion in the Affordable Care Act case.

Not only did Roberts avoid being Roger Taney, Mark suggests; he may be setting himself up to be more like an activist version of the first Chief Justice, John Marshall.

Mark makes the point that, while Marshall established the principle of judicial review of acts of Congress for constitutionality - not at all a "given" for the founders, and something that Thomas Jefferson found to be undemocratic - Marshall then proceeded to guide the Court for 30 years without ever again invoking the principle to overturn another act of Congress.

After reading Mark's post, the civics lesson on the American system of federalism that Roberts writes up at the outset his opinion (I don't mean that sarcastically; I still think it evidences a desire to be transparent and accountable) takes on even more resonance.

If I'm reading him correctly, Roberts seems to be saying there is this whole range of topics over which a government exercises authority - "the facets of governing that touch on citizens’ daily lives," as Roberts puts it, all falling under the rubric of "police power" - that the federal government has no business touching. Is Roberts building a theoretical construct to support a reinvigorated notion of states' rights, rebranded as a kind of democratic localism?

Photo: Kurt Milam / Flickr.