The web is rightly abuzz with analysis of the Supreme Court’s impending consideration of the US Affordable Care Act, usually known as Obama’s health care bill. Today is the second day of oral arguments. Of the many interesting aspects of the case, the role of precedent stands out. Implicit in much of the discussion on which precedents the Court will follow is that precedent actually matters. I think it does; others think not. We shall see. The broader discussion is over whether the Court will be willing to strike such a major law on a weak legal case. The legal issue is whether the Commerce Clause of the U.S. Constitution — 16 words that grant Congress the authority to regulate ‘commerce …
The theory of incommensurability presents us with the view that when forced to decide between different options, we may lack the ability to objectively compare the values underlying each alternative. Though our ultimate decision may be grounded in a variety of reasons, the fact of our decision is not proof in itself that the values behind our choice are better than those that we left behind. Some principles may rise above others, according to incommensurabilists, but that means only that they have won the battle in praxis, not in ethics. The impossibility of comparison may exist in some cases, but incommensurability fails to justify the ethics behind the ranking of values in policy matters; without compromise, the valuation of equal …
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