March 28, 2012

PROF. DAVID BERNSTEIN CHIDES THE SOLICITOR GENERAL FOR QUOTING THE PREAMBLE IN SUPPORT OF OBAMACARE: I agree that the quotation was unpersuasive, except maybe to Dahlia Lithwick, but I don’t think there’s anything wrong with quoting the Preamble in general. Here’s what Joseph Story wrote on the Preamble in his 1833 Commentaries On The Constitution:

The importance of examining the preamble, for the purpose of expounding the language of a statute, has long been felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute…. There does not seem any reason, why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. And accordingly we find, that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions.

So there. Meanwhile, in this piece I looked at the Preamble as doing rather the opposite of what Verrilli suggests.

UPDATE: Exclusive InstaPundit video of Verrilli’s practice arguments at the Department of Justice:

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