Opponents of President Barack Obama’s health care law say over and over again that the law is unprecedented. Never before, they argue, has the federal government mandated that people purchase a product like health insurance. In a brief filed with the Supreme Court, which is scheduled to hear arguments on the Affordable Care Act later this month, the challengers use the word “unprecedented” 23 times. If the court upholds the insurance mandate, they argue, it will be nothing less than a “revolution in the relationship between the central government and the governed.”
One thing that’s not unprecedented, however, is an effort to invalidate a federal law by characterizing it as novel and revolutionary. Throughout American history, opponents of reform have used this argument to claim that innovative legislation fundamentally undermines the Constitution.