Obamacare unconstitutional? The denizens of Washington and their
many friends who favor expansive and expensive government are
worried. At least one judge has actually read the Constitution.
Moreover, Tea Party activists are calling themselves constitutional
conservatives and insisting that the Constitution is relevant to
the operation of the federal government. It is a frightening
concept to those constantly seeking to expand Leviathan.
It has been years since the Constitution has had any
meaningful impact on what is done in Washington. True, no one
challenges the structural provisions — there are a hundred
senators, presidential elections are held every four years, etc.
And there are lots of court battles over application of the Bill of
Rights, largely because it protects some liberties favored by the
Left.
But most congressmen pay little, if any, attention to
their authority under the Constitution before they pass
legislation. And there probably are more unicorns in the wild than
executive branch employees who consult the Constitution before
imposing regulations.
Yet read the Constitution and you discover a document that
carefully creates a national government with limited and enumerated
powers. In contrast to state governments, federal authority is
constrained. Washington does not have general jurisdiction, or the
so-called police power, authorizing it to intervene in any matter
not explicitly barred by law or constitution.
None of the 27 amendments expanded federal power in this
regard. The 13th, 14th, and 15th Amendments, passed in the
immediate aftermath of the Civil War, did transform federal-state
relations: the United States went from being a plural aggregation
to a single unit. National power expanded insofar as it protected
individual liberty in the states. The constitutional changes did
not expand Washington’s authority to infringe the liberty of the
same individuals.
However, judicial “interpretation” changed over the years.
Although the Founders provided a method to amend the nation’s
governing document, activists preferred to take a judicial
short-cut. Judges liked the idea of making law and began treating
the constitutional text as advisory. This turned the Supreme Court
into a sort of continuing constitutional convention, with new
amendments routinely enacted with just five votes.
Jurist-legislators covered themselves in high-minded
rhetoric. Said the high priest of feel-good jurisprudence, Justice
William Brennan: “It is arrogant to pretend that from our vantage
we can gauge accurately the intent of the framers on application of
principles to specific, contemporary questions.”
Yet the real arrogance is the claim that unelected judges
are entitled to overturn settled legal understandings and complex
political compromises because they prefer a different outcome. The
proper interpretive objective is not to discern the secret intent
of a handful of drafters at the Constitutional Convention or a
later Congress, but to respect the common expectations of the
legislators and citizens who drafted and passed the provision at
issue. If the people’s intentions are not controlling, then what is
the purpose of the Constitution? The document should simply
authorize the executive and legislative branches to do whatever
they feel like, subject to judicial review, which will be based on
whatever the judges feel like. Why bother with the pretense that
constitutional interpretation is occurring?
Not every constitutional question has a clear answer, of
course, but that doesn’t mean honest application of originalist
principles allows any answer. The nation’s founding
document envisioned a national government of enumerated powers. A
jurisprudence of unlimited national power violates the nation’s
basic law.
Lincoln Caplan of the Legal Times recently
justified the “government-can-do-anything” position with an appeal
to the phrases “We the people,” “a more perfect union,” and “the
general welfare.” All of these are in a preamble written by men who
believed that the way to promote the general welfare for the people
was through a more perfect union in which the government had only
limited power. Revolutionaries who had fought against the excesses
of king and parliament were determined not to allow similar abuses
in the new nation they created. Silly idealists. They didn’t
foresee modern liberalism.
Caplan sneers at the “nostalgia for an inadequate version
of the country’s past.” Yet the problem of government abusing power
and violating liberty is eternal. That’s why the Founders
consciously limited the national government by enumerating its
authority. Has time passed their handiwork by? Then the people can
follow Article V and amend the Constitution. It isn’t easy, but
that is no argument against following the law.
In contrast, advocates of a “living” Constitution prefer
lawmaking by zeitgeist. If it feels good, interpret it, was always
the unstated approach of Justice Brennan and those who shared his
philosophy. Consider the jurisprudential theories, if they deserve
to be called such, offered by the book
The Constitution in 2020, published last year.
One standard bases judicial interpretation on a “dynamic”
sense of history and tradition. Using this argument, the courts
should declare a “right” to public education. Another approach is
to base constitutional doctrine on “consensuses,” that is, when a
big majority of people believe something. Judges get to determine
the right-sized majority and the exact consensus that
results.
Possessing even less meaning is the “time is right”
philosophy, which posits that judges should change the Constitution
when, yes, the “time is right.” Obviously legislators have no sense
of right timing and little things like the political process
shouldn’t get in the way. So leave it to judges. Moreover, a
“constitutional moment” may arise with the passage of “landmark
legislation.” In this case there is no reason to bother amending
the Constitution when you merely have to pass a
bill.
Finally, rights should result from the activities of
“social movements.” With this form of judicial make-believe there’s
no need even to pass a bill if you have organized a “movement.”
After all, these “organized communities” are sort of
mini-constitutional conventions, even if the rest of us weren’t
invited to attend.
Focusing on the intended meaning of constitutional
provisions faces obvious obstacles, but compare that to allowing
judges to amend the nation’s fundamental law in the name of the
right social movement pushing the right bill at the right time. The
mind boggles at the latter as a standard for anything, let alone
for protecting people’s fundamental liberties.
“Originalists” of varying stripes have tended to criticize
judicial “activism,” but activism is not the problem. Lack of
fidelity to the Constitution is the problem.
The Founders, as well as those involved in the
ratification and amendment struggles, wanted to limit the powers of
government. To be true to that objective judges have an obligation
to act to enforce the Constitution. This explains the
apparent contradiction cited
by Politico columnist Michael Kinsley: how can Republican
legislators advocate that the courts turn activist and strike down
Obamacare?
However, as noted
by James Antle in the Spectator, “the notion that the
Constitution imposed substantive, rather than merely procedural,
limitations on that government was for a long time fairly
uncontroversial.” Even the modern Supreme Court has recognized
limits to the Commerce Clause, stating bluntly that the justices
were not ready to accord the national government unlimited “police
power.”
Although expansive, the Commerce Clause has never been
used to reach inactivity. Dahlia Lithwick of Slate
accused opponents of Obamacare of pursuing “a rather radical
rewriting of the Constitution,” but that is what liberal jurists
have been doing for decades.
The Constitution empowers Congress to regulate commerce
“among the several states,” and no court has ever held that merely
living in one of those states is itself a form of commerce “among
the several states.” If the federal government can force Americans
to engage in commerce by buying health insurance, it can insist
that they purchase automobiles from bankrupt manufacturers, acquire
securities from failing Wall Street concerns, become farmers by
growing food in their yards, and exercise three times a week. That
is, upholding this power would obliterate the constitutional scheme
of limited government. There would be no need for Article 1,
Section 8, other than one clause allowing Congress to regulate
commerce.
If the American people want a national government of
unlimited power, they can have one. But to do so they should amend
the Constitution, rather than rely on an ephemeral majority of high
court justices. And if they don’t want one, it should not be
imposed on them by judges acting on personal whim. If the
Constitution is still relevant to Washington governance, jurists
have an obligation to act to invalidate
Obamacare.
GIVEN THE TENDENCY of judges to ignore law and
constitution, one helpful fix would be to end life tenure for
justices. Intended to protect judicial independence, this provision
creates a dangerous and disconnected elite that will always be
tempted to overstep its role. Better to appoint judges for a term,
perhaps ten years. Rotation in office would still insulate jurists
from political passions while limiting the concentration and abuse
of power by the judiciary. Errant jurists would naturally leave the
bench rather than forever wield unconstrained power — becoming
liberal saints along the way.
The Constitution must mean something to have any effect.
One approach would be to amend the document by sprinkling the
phrase “and we really mean it” after the many provisions gutted by
aggressively statist judges. Better would be to insist that judges
enforce the document as written, meaning the general political
compromise when specific provisions were passed. If constitutional
protections are but formless inkblots, then no American is truly
safe from his or her government.
