The Progressive States Network argues that a very activist federal government is consistent with the Constitution. The American Constitution Society specifically defends the health care law against the argument that it unconstitutionally extends the federal government's power:
Highly politicized efforts to repeal the landmark health care law have led a group of more than 100 leading legal scholars from across the country to join together in a statement reaffirming the constitutionality of the Affordable Care Act and calling attention to the dangers of "throwing out nearly two centuries of settled law.""I've never seen such an outpouring of support among law professors before," UCLA School of Law professor Adam Winkler said during a press call today hosted by the American Constitution Society and the Center for American Progress. "Legal experts nationwide are worried about the bald-faced judicial activism of the lower court in Virginia."
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The Tenth Amendment is more than a legal construct. It is an expression of the American tradition of self-governance. The propensity to self-organize spontaneously at the local level to solve problems that had been observed by Alexis de Toqueville—and felt so painfully by the British Army—was essential to American democracy. The Constitution had been designed to protect it, not supplant it. And while a respect and deference to state authority both predated and was implied in the Constitution itself, in the end the Tenth Amendment was deemed necessary to ensure that self-governance would never give way to tyranny.In this sense, the Tenth Amendment, coming at the end of the Bill of Rights, was something of a summation of the Framers’ whole notion of American democracy—and a salutary warning that those powers granted to the federal government needed to be kept strictly limited within the Constitution’s constraints, or else the States and individuals who formed the Union, and the Union itself, would be imperiled. That is why the Tenth Amendment matters.
