Slate’s Lithwick says Cuccinelli suit ‘radical’ effort to ‘fundamentally rewrite the Constitution’

It was bound to happen, but just hours after a federal judge deemed the health insurance mandates in Obamacare unconstitutional, MSNBC had a few theories of why the ruling took place, none of which involved the actual constitutionality of Obamacare.

On MSNBC’s “The Rachel Maddow Show,” viewers were treated to Slate.com senior editor and legal correspondent Dahlia Lithwick’s theory of what is going on with the legal challenges to Obamacare.  According to Lithwick, there’s a conspiratorial element behind Virginia Attorney General Ken Cuccinelli’s lawsuit.

He’s trying to rewrite the U.S. Constitution, according to Lithwick.

“But also what I think is really intriguing about the Cuccinelli suit is that it’s what I’m calling an aspirational view of the Constitution,” Lithwick said. “Cuccinelli doesn’t like much about the 14th Amendment, the 17th Amendment. There’s whole chunks of the Constitution that he wants to do away with, right? He’s challenging the EPA’s power to regulate. He’s challenging the birthright – the citizenship provisions of the 14th Amendment. He has a sort of a cut-and-paste view of the Constitution.”

Lithwick can be remembered for her 2006 musings about the Duke lacrosse team rape allegations where she claimed these charges were a statement about society’s failings, specifically on college campuses. Unfortunately for Lithwick, the charges were dropped and the prosecuting district attorney faced jail time for pushing them. But that hasn’t seemed to tarnish Lithwick’s credibility as a legal expert.


Lithwick went on to add that Cuccinelli is relying on Bush-appointed judges to pull off this constitutional caper.

“And I think this is not just about the Obama health care law. I think this is about a rather radical rewriting of the Constitution, and a sensibility that there are enough judges out there – and Rachel I said this often to you in the past, President Bush appointed one-third of the sitting judges on the federal bench,” Lithwick continued.

“And I think there’s a real hope they will not look at what the commerce clause has said, what precedent has said, what case law said, what has happened in the court since 1942 when the judges started thinking about the commerce clause – I think this is a lawsuit that aspires to something different, that aspires to really fundamentally rewrite the Constitution. And I think there’s a real hope there’s enough judges out there, including maybe at the Supreme Court who agree with that project that they think they really have a shot at this.”

Lithwick didn’t get any disagreement from host Rachel Maddow. Maddow called it “conservative constitutional radicalism.”

“Conservative constitutional radicalism is, I think, becoming well-known in legal circles and the political impact of it is only starting to trickle down into how we understand how our politics is working,” Maddow said. “I think you’re right in which this is one of the cases it becomes very, very very clear.”