If the court rules in Timothy Ring’s favor, it could potentially affect some 800 cases — more than one-fourth of the total number of prisoners currently on death row — in the nine states in which judges either always make the fateful sentencing decision between life in prison or death, or in which they are permitted to override a jury and impose a death sentence. That’s more people than were on death row at the time of the Furman vs. Georgia decision on June 29, 1972, which temporarily ended capital punishment in America. At the minimum, it will overturn the death sentences of dozens of Arizona inmates, and perhaps hundreds nationwide.

The court’s decision is likely to hinge on conservative Justice Antonin Scalia. That’s because Scalia wrote a strong concurring opinion in the precedent Ring’s lawyers are using — a New Jersey drug case known as Apprendi vs. New Jersey, in which the justices ruled 5-4 that any new information obtained or used by a judge after a trial, as grounds for increasing the sentence of a convict, must first be considered and approved by a jury. In supporting the Apprendi decision, Scalia wrote: “Judges, it is sometimes necessary to remind ourselves, are part of the state.” He added, “The founders of the American republic were not prepared to leave [criminal justice] to the state, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights.”

Scalia, a strict constructionist, now seems to be squirming a little, given that his staunch jury-rights decision may be used to free death row prisoners. When the Supreme Court heard arguments in the case in April, Scalia seemed to be trying to back away from his earlier position.

But even some conservatives say Scalia was right in Apprendi, and he should come down on the same side in the Ring case.

“It seems to me that Apprendi and the Sixth Amendment to the Constitution apply in the Ring case,” says Charles Key, a former Republican state representative from Oklahoma who is now executive director of Common Sense Justice, a national campaign aimed at enhancing the right of citizens to challenge laws passed by legislatures and Congress. “A jury should have to determine the facts in the case.” Key says even though Apprendi was not a death penalty case, if the law says juries should have access to all the evidence in noncapital sentencing decisions, “it makes no sense to give the government the power over taking a human life.”

“The question for Justice Scalia is whether he will have the courage of his Apprendi convictions even though it will mean making what is for him an abhorrent result — striking down Arizona’s death penalty law,” says Edward Lazarus, a former federal prosecutor now in private practice in Los Angeles who writes for FindLaw.

Amazingly, the dramatic Ring case has received little media attention — and that’s just fine with the plaintiff. In fact, Andrew Hurwitz, the Phoenix lawyer who argued Ring’s case before the Supreme Court, asked the usual organizations that might have been expected to file friend-of-the-court briefs and to crank up their publicity machines to refrain from joining his effort. He apparently didn’t want the justices who are considering the case to be bombarded with media scare stories about hundreds of convicted murderers getting new trials.

Says Hurwitz: “We steered people away from filing amicus briefs because, based on my experience, unless they really add something to your case, they don’t help. I really wanted to control what was being said.” Hurwitz knows what it’s like to be on the other side, being swamped by amicus briefs. As a young lawyer he clerked for the late Supreme Court Justice Potter Stewart.

The Ring case involves a prisoner who, in 1995, was convicted by an Arizona court of being a ringleader in the fatal 1994 robbery of an armored truck in which the driver was shot dead. Although Ring was never placed at the scene of the crime during the course of the trial, he was found to have played a key role in the planning of the robbery, and was thus convicted of felony murder by a jury, a crime for which the maximum penalty is death. But the jury split 6-6 on the charge of premeditation.

Given that in the U.S. it is almost unheard of for someone to be executed who didn’t have a direct hand in a killing, it is unlikely that Ring would have gotten a death sentence if that had been the end of it. But when it came time for the judge to hold a sentencing hearing on Ring’s case, new evidence was presented — one of his accomplices testified that Ring had been the shooter. Based on that new information, which was never heard by the jury, the judge sentenced Ring to death.

And that seems to fly in the face of Apprendi vs. New Jersey, in which Scalia argued that the jury’s right to review information used by a judge to sentence a convict is rooted in common law. Now, Ring’s attorney Hurwitz is arguing that the court’s Apprendi decision ought equally to apply to evidence used by a judge to sentence someone to death.

But Kent Cattani, the chief counsel for capital litigation in the Arizona attorney general’s office and the man who drew up the state’s response to Ring’s appeal, says the state’s position is that Ring’s death sentence “doesn’t increase the range of his sentence. A death sentence is not outside the range of possible sentences for first-degree murder.” Cattani concedes that the new evidence presented to the judge at the sentencing hearing in Ring’s case, after the jury had already been sent home, “might have made a death sentence more likely.” But he adds, “A death sentence wasn’t a surprise in this case — it was a death-qualified jury and the defendant knew that he could get a death sentence.”

Charles Hobson, an attorney with the Criminal Justice Legal Foundation, in Sacramento, Calif., one of two victims’ rights organizations that filed amicus briefs in support of the state of Arizona’s position in the Ring appeal, says that in addition to agreeing with the state’s arguments, it’s important that the high court be consistent regarding the death penalty. “For the court to all of a sudden sweep away” earlier precedents that had led to the state’s death penalty procedures, he says, “would be a terrible violation of the trust states have in Supreme Court decisions.”

At the Supreme Court’s hearing on Ring, Scalia, an ardent supporter of the death penalty who has gone so far as to suggest that Catholic jurists in death penalty jurisdictions who don’t think they can in principle sentence someone to death ought to resign, was backpedaling furiously from his pro-jury stance of two years earlier. At one point he argued that the court’s 1972 Furman decision, which required states to separate capital cases into two parts, a guilt phase and a sentencing phase, “has no basis in common law,” and that therefore how state courts handled the sentencing phase in death penalty cases was a procedural matter, not a matter of common law or Sixth Amendment issues.

“Actually,” says Alan Scheflin, a law professor at Santa Clara University Law School and an expert on jury rights, “the reason juries are so important in common law is that in early English history, almost every crime carried a death penalty, and it was juries which protected criminals who committed lesser crimes by nullifying their verdicts. It’s juries that led England to introduce lesser punishments.”

In any event, Justice Ruth Bader Ginsberg skewered Scalia’s effort to separate death sentencing from the impact of Apprendi. She asked the Arizona attorney general, who was agreeing with Scalia, “Would you tell me how one would explain to a citizen that [under Apprendi] you can’t get five years added on to your sentence unless the jury makes the critical finding, but you can be put to death with the judge making the critical finding?”

That seems to be the crux of the matter: Is death different?

“The question is will Scalia and [Clarence] Thomas, who also voted for Apprendi, do what is principled and what is right?” asks George Kendall, who heads the NAACP Legal Defense Fund, and who sat through the April 22 hearing on Ring vs. Arizona.

Kendall notes that because this case is about jury primacy, which is a bedrock conservative judicial theory, it cuts across traditional liberal/conservative lines in this narrowly divided Supreme Court. And indeed, it seems to.

Ilo Jones is director of the Fully Informed Jury Association, a generally conservative and libertarian organization that promotes the concept that juries have the ultimate power in a trial not only to determine the facts of a case, and guilt or innocence, but also the law itself. FIJA, she notes, takes no position on the death penalty. But looking at the Ring case, and the evidence presented to the judge during a sentencing hearing, she says: “This was significant information which was not made available to the jury. In any instance where a citizen has placed him or herself in the hands of a jury, trusting that a just and reasonable decision will be rendered by that jury, and the jury is denied full access to all the facts of the case and to any information that is presented to the court, whether in their presence or absence, then the intent of the law of our nation has been thwarted.”

Thomas and Scalia, two of the court’s most conservative jurists, sided with the liberals Ginsberg, Souter and Stevens in supporting the Apprendi decision two years ago. But if those two conservatives were to defect in Ring vs. Arizona, the liberal justices could still conceivably craft a narrow 5-4 majority, some court observers say. They could do this by pulling in Justices Sandra Day O’Connor and Stephen Breyer.

O’Connor, who lately has publicly expressed concerns about the fairness and integrity of the death penalty, warned in the Apprendi case that it would inevitably lead to a questioning of judge-ordered death sentences, which is the way things are done in nine states, including her native Arizona. As she wrote in her Apprendi dissent, “If the court does not intend to overturn Walton [a reference to Arizona's death penalty statute, which assigns the role of sentencing in death penalty cases to the judge, and which the court upheld in a decision a decade ago], one would be hard pressed to tell from the opinion it issues today.” Breyer, meanwhile, a generally liberal jurist who also opposed Apprendi, and O’Connor might well decide that in the interest of consistency with court precedent, they have to support Ring, argues Kendall.

Guessing how any Supreme Court will rule on a particular case based upon the justices’ past decisions and on their comments during a hearing is a fool’s game, but both Kendall and Hurwitz are expressing optimism that they have a winner here.

If the court does overturn Ring’s sentence, the next question is how far-reaching its decision would be.

Hurwitz and Cattani agree that such a ruling would void the sentences of about 30 of Arizona’s 80 current death row inmates — the ones whose direct appeals of their sentences are still pending. With similar proportions of cases still on direct appeal in the other eight states where judges do at least some of the death sentencing, this could mean at least several hundred people would have their sentences overturned (though not their convictions).

In two other states, Montana and Idaho, judges do the sentencing in capital cases. In Colorado and Nebraska, a three-judge panel does the sentencing. In four other states — Florida, Alabama, Indiana and Delaware — juries make a recommendation of life or death, but a judge makes the final decision. In the remaining 29 states that have the death penalty, sentencing is in the hands of the jury.

There would also no doubt be a wave of new appeals filed for older cases based upon the ruling.

Of course, the court could, as it did with Furman three decades ago, make a Ring ruling apply to all cases, old or new, where a judge has done the sentencing, which would bring the total up to about 800 cases. Most legal experts say this is unlikely, particularly for this court.

According to Stephen Hawkins, attorney with the National Coalition to Abolish the Death Penalty, any favorable ruling in Ring, no matter how narrowly construed, would be a major victory for death penalty opponents. “It speaks to the fallibility of the death penalty. The death penalty is supposed to be a perfect punishment that is administered without error, and yet cases like this show that capital jurisprudence is really an emerging issue.”

Then too, the high court could just duck the issue, rejecting Hurwitz’s arguments and sending Timothy Ring back to Arizona to face execution.

Prof. McConnell’s essay includes some uncharacteristically sloppy statements, as Sam Bagenstos points out. But he asks a good question: Why didn’t the Democrats see this trouble coming?

I’m now working on a book on the constitutional objections to the Affordable Care Act, which will be published in the spring of 2013 by Oxford, and I’ve been researching this very question. What I’ve found may be surprising.

The constitutional limits that the bill supposedly disregarded could not have been anticipated because they did not exist while the bill was being written. They were invented only in the fall of 2009, quite late in the legislative process.

The first exploration of Congress’s authority to enact a mandate was a paper by Mark Hall, which he posted on SSRN in February, 2009. (I have not been able to find even a hint of the constitutional objection before Obama’s election, even though mandates have been proposed, mainly by Republicans, since the early 1990s.) He concluded that the mandate easily followed from existing commerce clause jurisprudence. His piece is extensively footnoted, but it cites no authority to the contrary. Republicans had no constitutional objections. Senator Charles Grassley said in June 2009, “I believe that there is a bipartisan consensus to have individual mandates.”  (He later changed his mind.)

The first published claim of unconstitutionality that I have been able to find is a July 10, 2009, Federalist Society paper by Peter Urbanowicz and Dennis G. Smith. They created the now notorious action/inaction distinction, declaring that “Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.” But they made only a modest effort to rebut the obvious response based on text and precedent, and their bottom line was that a mandate “might be susceptible to an ‘as applied’ challenge from individuals who (1) never access the health care system or (2) are able to pay for their health care without using insurance.” Not only does this not suggest a facial challenge of the kind that the Court is now considering — even they weren’t that bold — but the hypothetical individuals are fanciful.  No one who is not a multimillionaire can know for certain that they will be able to pay for all their future healthcare needs out of pocket.

On July 14, the House committees generated a unified healthcare bill, and the next day the bill passed the Senate Health Committee. On July 24, a Congressional Research Service memo, determinedly evenhanded, declared that the power of Congress to require the purchase of a good or service was “a novel issue.”  It, too, developed no substantive argument for unconstitutionality.

An August 17 blog post by Rob Natelson offered a litany of briefly stated constitutional objections, most of which were never heard from again. It was quoted sympathetically, but without elaboration, by David Kopel on the Volokh Conspiracy blog – the first post on that blog to suggest that there could be a constitutional issue. (The importance of the Volokh blog to the healthcare issue has already been noted, here.) On August 22, David Rivkin and Lee Casey wrote a Washington Post op-ed declaring that “[t]he federal government does not have the power to regulate Americans simply because they are there.” There were some follow-up posts on Volokh Conspiracy by Jonathan Adler and Ilya Somin, both of whom reluctantly concluded that the bill was clearly authorized by current law. (Both later changed their minds and will now tell you that the mandate is obviously unconstitutional!)

On Sept. 18, Randy Barnett entered the fray for the first time, with a post on Politico and a follow-up on Volokh. Suddenly the meme went viral. On Sept. 21, CBS News reported that, “In the last few days, a new argument has emerged in the debate over Democratic healthcare proposals.” CBS observed that the O’Reilly Factor and Fox News had picked up on the story. Suddenly there was an outpouring of pieces, on Volokh and elsewhere, developing the constitutional objection. But even at this point it was a soundbite, not a legal argument.

The bill passed the Senate Finance Committee on October 13, and the full House of Representatives on November 7.

The first sustained legal argument was published by Barnett and two coauthors in a Heritage Foundation paper on Dec. 9, 2009. This was no casual blog post. It carefully engaged the cases and the literature and closely tracked the argument that eventually was brought before the Court. Barnett deserves the credit he has gotten: Like so much of his work, the argument was witty, sophisticated, creative and clever. There had been nothing like it before. But it had little basis in existing law, and its flaws came to light almost immediately. Rivkin and Casey made a similar argument (which didn’t add much, on the crucial commerce power issue, to their earlier op-ed) in a piece (undated) on the Pennsylvania Law Review’s web edition. Jack Balkin wrote a devastating reply, to which Barnett posted a link and response on Dec. 11.

None of these writings said much about the most powerful basis for Congress’s authority: its broad power under the Necessary and Proper Clause, which has been well established since 1819. Barnett’s paper was a work in progress. By the time he wrote his Supreme Court brief in February 2012, he implicitly acknowledged this unfinished business by struggling for more than 30 pages with the problem.

The bill passed the Senate on Dec. 24. The rest of the story is familiar: On January 19, 2010, Scott Brown surprisingly won the special Senate election in Massachusetts, depriving the Democrats of their filibuster-proof majority. It took some time for them to figure out how to respond, but the legislative obstacles were surmounted, and the bill was signed in March 2010.

The Democrats might, I suppose, have jettisoned the mandate. Certainly by early 2010 they knew that constitutional arguments were being made. McConnell suggests that “the drafters of the legislation should have stayed within the generous bounds of authority established by prior precedent.” But that’s just what they did do. As Balkin noted in July 2010, Barnett was trying to shift the boundaries of what counted as an off-the-wall argument.

Dropping the mandate also would have defeated one of the law’s primary purposes. A Congressional Budget Office report indicated that eliminating it would raise the uninsured population in 2019 by 16 million, with insurance rates rising by 15 to 20 percent for those who bought insurance individually. McConnell thinks that the Democrats have only themselves to blame, because they did not toss these people over the side as soon as there was a whisper of a constitutional issue. As the oral argument made clear, the case against the mandate requires a remarkable degree of callousness, obsessively focusing on the minor burden imposed by the mandate while determinedly ignoring the fact that the unavailability of insurance kills thousands of people annually. Now we are told that the Democrats were unreasonable because they did not immediately capitulate to their opponents’ newly crafted assumption that this callousness is written into the Constitution.

To say that the Democrats have only themselves to blame for not anticipating these newly minted constitutional claims is like saying John F. Kennedy had only himself to blame for not getting a second term as president because he should have anticipated Lee Harvey Oswald.

Much is being made of Toobin’s revelations about the dramatic internal political divisions and infighting within the court triggered by the CU decision (more on that later). But what I think is most politically significant in Toobin’s piece is that it shows the dramatic rightward – and backward — march of Republicanism over the last 30 years. In January 1982, Ronald Reagan famously wrote in his diary, “The press is trying to paint me as trying to undo the New Deal … I’m trying to undo the Great Society.” Reagan was anxious to unravel the anti-poverty programs Lyndon Johnson pushed into place (though not Medicare), but he collaborated with House Speaker Tip O’Neill to pass payroll tax increases to stabilize Social Security for the next 50 to 60 years.

Today’s Tea Party, of course, is going after what’s left of the Great Society and the New Deal too, trying to privatize Medicare and Social Security and undo the labor protections passed by Congress and many states in the wake of the Great Depression. But the Roberts court wants to go back even further, to the Progressive Era, when some politicians in both parties recognized that the omnipotence of Gilded Age robber barons had to be curbed – and that campaign finance regulation was a good place to start.

Back then a conservative Supreme Court majority also disagreed with that Progressive reform push. In an 1886 tax case it first held that the 14th Amendment’s equal protection laws applied to corporations. In its 1905 Lochner ruling, striking down a New York law limiting bakery workers to a six-day 60-hour week, it declared such regulations a breach of contract rights, an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” As Toobin observes, “In simple terms, the majority in Lochner turned the Fourteenth Amendment, which was enacted to protect the rights of newly freed slaves, into a mechanism to advance the interest of business owners.”

Progressive era reform also included campaign finance regulation, starting with the 1907 Tillman Act, which prevented corporations from directly contributing to campaigns. The Court let the act stand, but over the years a series of rulings by conservative majorities have managed to establish that money is “speech,” and though contributions could be regulated, expenditures – speech – could not.

Toobin shows decisively that the court could have kept its decision on Citizens United quite narrow. Attorney Theodore Olson wasn’t seeking to strike down McCain-Feingold, but to clarify that it applied to television commercials, not to 90-minute political “documentaries” such as “Hillary: The Movie” (a shriekingly negative “documentary” on the woman who was expected to be the 2008 Democratic presidential nominee). But in oral arguments the conservative justices sought to broaden their purview, and Roberts helped them along. “As the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party,” Toobin writes. “Roberts’s choice was: a lot.”

After taking a shot at drafting the CU ruling himself, he later assigned it to “swing vote” Anthony Kennedy, whose views on campaign finance regulation reliably put him with the conservative majority. Assigned to write the dissent, outgoing Justice David Souter accused Roberts “of violating the Court’s own procedures to engineer the result he wanted,” Toobin says. That’s when Roberts took the extraordinary step of asking that CU be re-argued – though with five justices already committed to a sweeping attack on McCain-Feingold, the outcome of those re-arguments were never really in doubt.

And indeed, Kennedy again wound up writing the majority opinion, which found that “The Court has recognized that First Amendment protection extends to corporations” since 1886, and that in McCain-Feingold “the Government has muffled the voices that best represent the most significant segments of the economy.” It’s unclear from the context whether Kennedy is saying what he seems to be – that corporations “best represent the most significant segments of the economy.”

Justice John Paul Stevens, a moderate Republican once on the court’s more conservative end, wrote in his dissenting opinion, “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Stevens’s dissent continued for a record 90 pages.

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

Toobin’s conclusion is no less scathing: “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.”

It’s worth noting that the most spirited opposition to Citizens United is coming from Montana, where the ties between Gilded Age corporate abuse and campaign finance regulation are perhaps the most explicit. Copper mining interests essentially owned the state in the late 19th and early 20th century, but Montana Progressives pushed a tough campaign finance law as a way of clawing back control of their state from the “copper kings,” who Mark Twain wrote “bought judges and legislatures as other men buy food and raiment.” Montana’s state Supreme Court upheld that 1912 “Corrupt Practices Act” in January, putting the state on a collision course with SCOTUS. Gov. Brian Schweitzer has been one of the most articulate voices against Citizens United, and supports a state ballot initiative that would ban corporate money in politics and make it state policy that corporations are not people.

“Montana’s going first, but we have before,” Schweitzer told the Huffington Post earlier this month. “It was Montana in 1912 that banned corporate money from our elections. We don’t mind leading and we believe it has to start somewhere. This business of allowing corporations to bribe their way into government has got to stop.”

But in a world where the Citizens United decision is precedent, it’s hard to imagine that ballot measure surviving a legal challenge. Toobin’s piece makes clear the stakes in the 2012 presidential race as vividly as anything else does: American democracy can’t survive the appointment of more justices like Roberts, Sam Alito and Antonin Scalia, who mainly serve the interests of corporate America. Mitt “Corporations are people, too, my friend” Romney can be expected to give them company in the years to come if he wins the White House.

Marcus, though, is stopped cold.

And yet, Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”

Judicial review, as a former constitutional law professor certainly understands, is not in the Constitution — an unelected activist judge made it up! — and the founders themselves disagreed on the wisdom of the principle. (They tended, in fact, to decide whether or not they liked judicial review based on whether or not the judges ruled in a way that they approved of.) The history of the Supreme Court is replete with nakedly political and mostly conservative rulings until very recently, when we had a brief period of liberal-leaning rulings from a marginally more diverse group followed by a return to status quo conservatism.

As long as the Supreme Court has been making awful and indefensible rulings based on ideology or racism, presidents and politicians have been criticizing the court. Abraham Lincoln attacked the Supreme Court in his first inaugural address, in a passage that conservatives love to quote when they’re attacking “activist judges.”

At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

I am stopped cold and unsettled!

Marcus, hilariously enough, supports the healthcare law and the mandate — she is the world’s most sensitive milquetoast moderate liberal newspaper columnist, after all — which theoretically means she thinks it’s constitutional, which would mean that declaring it unconstitutional should maybe upset her more than criticizing the court for being political, but on the other hand those judges seem very smart and our entire system of government could collapse if we aren’t all super polite to one another and constantly deferential to authority.

I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.

Yes, I could tell they were very seriously wrestling with a difficult constitutional question when Scalia began joking around about broccoli mandates and the legendary “Cornhusker Kickback.”

I’m not sure what more the Supreme Court could do before moderates like Ruth Marcus finally acknowledged that it’s a partisan body with a right-wing majority. If Bush v. Gore didn’t do it, maybe nothing could. But as a partisan body it is open to partisan attacks, and our fragile democracy will not descend into anarchy if people think as poorly of the Court as they currently do of Congress.

Of course, the Republican talking point is that the president is attempting to bully the Court into ruling the way he wants. (Because if they strike down the law, he’ll … yell at them during the State of the Union again? No one seriously predicts an arrest warrant for Chief Justice Roberts here.) Mitch McConnell: “This president’s attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.” Lamar Smith: “What is unprecedented is for the president of the United States trying to intimidate the Supreme Court.” Mike Johanns: “”What President Obama is doing here isn’t right. It is threatening, it is intimidating.” (Did you notice how everyone used the word “intimidate”? That’s because they got their language from a memo.)

The only time, besides Lincoln’s suspension of habeas corpus, that any president has seriously threatened the independence of the Supreme Court was when Franklin Roosevelt tried to amend the law to give the president the power to appoint more justices. And Roosevelt, frankly, was right on the merits of his proposal. The court is completely unaccountable and ridiculously powerful, it always has been, and pointing that out does not a constitutional crisis provoke.

The U.S. Constitution, like many state constitutions, really is two constitutions in one. There is the black-letter constitution, which consists of rules about which there is little or no dispute. Most of these have to do with qualifications for representatives, like Article I, Section 3, Clause 1, as amended: “The Senate of the United States shall be composed of two Senators from each State, for six Years; and each Senator shall have one Vote.” Not a whole lot of room for interpretation there.

The other constitution, embedded in the same document, is the Blank Constitution. It is not so much a limit on power as an assignment of the power to fill in blanks left in the text, like the Eighth Amendment’s prohibition of “cruel and unusual punishment.” The need to fill in the blank is admitted even by champions of the “original intent theory,” who must dig up historical evidence of what the drafters and ratifiers might have thought was cruel and unusual punishment at the time of the Constitution’s adoption. The answer is not contained in the text.

Even the basic definitions of powers assigned to different branches of government are blanks that must be filled in. The basic issue in the case of the Affordable Care Act is whether Congress had the power to compel individuals to purchase private health insurance, under the Commerce Clause and the Necessary and Proper Clause of the Constitution. Article I, Section 8, Clause 3 of the Constitution gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Article I, Section 8, Clause 18 gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Is the power to prescribe an individual health insurance purchase mandate included in these powers granted by the Constitution to Congress? The Constitution does not specifically say. If the Constitution were easy to amend, like some state constitutions, then it could be more specific — at the cost of having hundreds of amendments, like an imaginary Amendment Number 873: “Congress shall have power to impose an individual mandate to purchase health insurance.” But the federal constitution, for better or worse, was designed to be difficult to amend.

There is therefore no escaping acts of interpretation that are really acts of legislation: filling in the blanks in the text of the Constitution. The only real question, therefore, is how much latitude the federal judiciary should give Congress when Congress fills in the blanks by passing laws.

The Whig Party between the 1830s and the 1860s thought that the federal judiciary should defer to Congress. The Whigs favored a strong, competent federal government and opposed restrictions on federal power in the name of the states. Opposed to the administration of Andrew Jackson, the Whig Party also wanted the powers of the presidency strictly limited. In the Whig view, the federal judiciary should defend congressional power against encroachments by the states and the executive branch, while deferring to the decisions of Congress on matters of federal legislation.

The Whig theory of the Constitution strikes me as a pretty good one. But it rules out judicial activism, which has been embraced at different times by different factions in American politics. Between the Civil War and the New Deal, a pro-business federal judiciary persecuted unions and struck down federal, state and local restraints on corporations. In the civil rights era, liberal federal judges went beyond striking down racist laws to discovering a “right to privacy” in the Constitution that has been used to eliminate or restrict laws against abortion and homosexuality. Whatever you think about the outcomes of these cases, it is clear that the courts in all of them were just making things up.

In the case of the “right to privacy” they weren’t even filling in a blank in the Constitution, because the term does not exist in the text. In Griswold v. Connecticut, the 1965 case on which all subsequent federal law involving sex and reproductive rights including Roe v. Wade has been built, Justice William O. Douglas wrote that while the Constitution said nothing about contraceptives the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The right to privacy is a penumbra from an emanation — in other words, it is whatever a majority of the Supreme Court says it is at any given moment.

Liberals applaud the federal judiciary when it pretends to find constitutional restrictions on the ability of states to ban abortion or gay sex, and conservatives and libertarians applaud the federal judiciary when it pretends to find constitutional restrictions on the ability of Congress to regulate the national economy. The left and the right endorse judicial activism when it works in their favor and denounce it when it produces what they think are the wrong results.

For my part, I think the Whigs with their theory of judicial deference to Congress got it right. The states have usually been a greater threat to personal liberty and economic growth than the federal government. Yes, the federal government interned Japanese-Americans during World War II and has abused civil liberties in other ways, and before the Civil War some Northern states were more protective of freedom than the slaveholder-dominated federal government. But throughout American history national majorities, acting through the federal government, have more often checked the illiberalism of local majorities.

Economic policy, too, is best carried out at the federal level in a nation with a continental market. The Balkanization of the U.S. economy into 50 separate state economies by state regulations — even good regulations — is something that should be avoided. And as corrupt and partisan as it is, Congress is better equipped to make public policy than judges.

But wouldn’t judicial deference toward Congress and a broad interpretation of congressional power run the risk of majoritarian tyranny over minorities at the national level? The historical record suggests otherwise. The Supreme Court has almost never been ahead of the political branches when it comes to minority rights or individual freedom. The Court intervened in Brown v. Board only when the civil rights revolution was well underway in the streets and in legislatures, and it intervened in Roe v. Wade and recent gay rights cases only when waves of reform were making progress in federal, state and local legislatures. The federal judiciary has often run out with its surfboard to ride a wave of liberation, but it has never caused the wave. Indeed, in the last half-century the same reforms — anti-racism, the liberalization of abortion laws and the rise of gay rights — have taken place at roughly the same time in all advanced industrial democracies, including Britain, which has no written constitution at all.

When they try to fill in the blanks in the Constitution themselves, instead of letting Congress do the job, federal judges cease to be judges and start acting as legislators — incompetent legislators, like the Supreme Court justices who wrestled with issues like adverse selection in insurance policies in last week’s hearings. A number of state constitutions provide for the direct election of state Supreme Court justices by the people. Perhaps the federal Constitution should be amended along similar lines. Why not? If our laws are to be made by a tricameral federal legislature with three branches of the legislature — the House, the Senate and the Supreme Court — we the people might as well be empowered to elect the lawmakers in all three.

But I can’t.

I can’t because it isn’t theoretical. I am sick. I’m so sick I can’t drink. I can’t drink and I can’t eat half the things a normal person eats and when I hear the word “Obamacare” hissed in snide derision I want to put a golf club through the windshield of the nearest Mercedes-Benz.

I’m 33 years old. I was diagnosed with an autoimmune disease called ulcerative colitis when I was 26.

Ulcerative colitis isn’t a disease people like to discuss. Most of what we experience is so embarrassing that many of us don’t tell people what we’re going through. We might tell you we’re “sick,” or “under the weather,” but we won’t tell you how bad it is. We won’t tell you we’ve had constant diarrhea for days, weeks, months on end, that we’ve been throwing up stomach acid, that we can’t eat anything but bagels, and that our joints ache so badly it’s hard to sleep. We won’t tell you how we’re wearing adult diapers under our clothes. We won’t tell you that getting in the car and driving three blocks away is the only activity we can do in an entire day.

But you know what we will tell you? We have to have insurance. We need healthcare and support because ulcerative colitis is a lifetime sentence. You know what else it is? A preexisting condition. Since receiving my diagnosis I have lived in fear of losing my insurance because if I let my insurance lapse, and Obamacare fails, I won’t be able to get it again. Ulcerative colitis and her sister, Crohn’s disease, are up there in the echelons of Scary Diseases Insurance Doesn’t Like to Cover.

I get it, I do. Some of our drugs cost a ton. It’s likely we’ll be hospitalized here and there. And many of us can look forward to bowel resection surgery or colon cancer. We’re expensive and we stay expensive for our entire lives. That’s the sticking point with chronic illness like Crohn’s and colitis: We’re sick but we just keep on living. We just don’t die fast enough.

If the health mandate stays, then the preexisting condition clause goes away. Insurance companies have to take everyone — even me. Lose the mandate and I’m right back to worrying about my care.

In truth, I think Obamacare doesn’t go far enough. My family is still coughing up $900 a month to insure the three of us, since my husband and I are self-employed. That’s pretty unsustainable. But at least the current plan includes a provision that insurance companies have to take me. I may have to pay ridiculous sums to keep my insurance, but I’m not going to live in fear of being dropped.

The last thing a sick person should have to worry about is how to pay for their care. The last thing the parent of a sick child or the child of a sick parent should have to worry about is how to pay for care. People should not have to choose between food and medicine, losing their house or losing their loved one. Let’s hold onto Obamacare as a stopgap, but let’s also work toward the goal of universal coverage.

For those of you who think of the healthcare reform debate in theoretical terms, I warn you: Your day is coming. Sure, you and your family are healthy now, but you might not be tomorrow. Sickness can come out of nowhere and knock your world upside down.

You’d better hope you have decent coverage. You’d better hope you’ve won the genetic lottery and you’ll never find yourself sitting in a flimsy hospital gown on a sheet of wax paper, staring down at your unshaven legs while a doctor tells you you have a golf ball-size tumor in your head or ulcers lining your intestines. You’d better hope Obamacare covers your theoretical ass.