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Volume 27 • Number 3

July 2013



Popular Constitutionalism and the Affordable Care Act

by Josh Blackman

The challenge to the Affordable Care Act was waged on two fronts. The first front was the constitutionalist front. Challengers claimed that it was unprecedented for Congress to compel people to engage in commerce, and purchase health insurance. They asserted that Congress lacked such authority under both the Commerce Clause and Taxing Power. However, the second front in this battle is much less appreciated. Underneath these constitutionalist positions were popular constitutionalist social movements.

This essay analyzes the challenge to the Affordable Care Act (ACA) through the lens of popular constitutionalism, from its conception, to its growth, to its strengthening countermovement, and finally to its inevitable conclusion in the Supreme Court of the United States. Specifically, this essay does not focus on the Courtís ultimate decision, but rather considers the paths of the competing movements that advanced this challenge over the two-year battle in the courts.

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ISSN: 2152-0542