Randy Barnett is not just a great scholar; he’s also a great lawyer. Maybe someone else beat him to it, but I credit him with the now-popular claim that health care reform’s “mandate” to buy insurance is “unprecedented” in american history, that never before has the government forced anyone to enter into a contract with another party for insurance. Fantastic rhetorical move. Not really accurate, though. People who refuse to buy insurance have been paying a penalty for almost seventy years now.
My response in the thread suggested that the post misunderstood Randy’s claim, and then added (perhaps inartfully!) the caveat that I had difficulties with the suggestion in Randy’s usage that I think makes it such a powerful rhetorical move — the suggestion being, it seems to me, that if a law is “unprecedented,” then legal “precedents” do not answer whether it is constitutional.
To elaborate, my sense of the rhetorical power of the use of the term “unprecedented” in this debate owes in part to its mixing up two meanings of the term “precedent.” One meaning is the popular use of the term “unprecedented,” which generally means whether that same thing, however precisely defined, has happened before. (“The Houston Astros winning the World Series? That would be unprecedented!”) The other is the technical legal usage of of the term “precedent,” the extent to which the reasoning of prior related judicial decisions direct or suggest an answer within the framework of existing caselaw. My point was just that these two meanings are conceptually different, and shouldn’t be blurred. Whether a new law is “unprecedented” is a distinct question from whether “precedents” address the constitutionality of that law.
Of course, it’s entirely possible that Randy did not mean to equate these things, in which case I will apologize to Randy and thank him for the clarification of his view. But that’s what I had in mind with my comment over at PrawfsBlawg.