ABSTRACT
Chief Justice Roberts in his majority opinion on the constitutionality of the Affordable Care Act (ACA) disagreed strongly with arguments Justice Ginsburg offered in her partial concurrence and partial dissent. Roberts stated, while dismissing Ginsburg’s countervailing arguments, that the Framers were “practical statesmen” and not “metaphysical philosophers.” As such, he argued, the U.S. Constitution must have necessary limitations on the meaning of “commerce” based on a distinction between activity and inactivity toward a given market—here, the health care market. His argument, though, rests on some pretty strong and yet unacknowledged baseline assumptions. In the opinion, by accepting his assumptions as “practical” and given, he allowed himself to treat his own stance as metaphysically justified without argument and shifted the burden of proof to those who disagree. Indeed, he not only dismissed metaphysical philosophers by categorizing them in opposition to practical statesmen but also derided the slippery categories of economists.
