Beneath the variegated opinions on health care issued by a divided Supreme Court, a shared subplot lurks: the strange and contentious fate of broccoli in a free republic. The conservative justices utilized the specter of a broccoli mandate to argue that the requirement to purchase health insurance exceeds Congress’ powers under the commerce clause. Justice Ruth Bader Ginsburg, writing for the minority on that issue, was at pains to say the analogy was inapt. Yet all sides are falling prey to a fallacy that illustrates the Court’s lofty self-image as the Platonic protector not just against abuse but against absurdity too.
Call it the reductio ad constitutionatum: the suggestion that a power is unconstitutional if it could be absurdly applied. In political argument, the reductio ad absurdum—questioning a premise by showing that it leads to absurd consequences—is legitimate. In judicial reasoning, though, it is less useful. Its unstated assumption is that the courts exist to protect us against our own acts of silliness—a vast understanding of judicial power. Even Earl Warren might blush.