In a round-up of conservative reactions to the Supreme Court's Obamacare ruling, an Economist blogger (I think Will Wilkinson based on initials and dateline, but the Economist is funny about bylines) mentions my column from yesterday and concludes, "Of course the constitution has meaning apart from what the judges say. Actually, it has lots of meanings apart from what the judges say. Too many meanings."
A paragraph above that he writes, "Many conservatives tend to get fixated on the fantasy that the constitution has a determinate meaning and that constitutional questions therefore have determinate answers." Constitutional questions aren't always easy and in some cases there are no final answers. The Framers never intended the Constitution to be an exhaustive policy agenda for every conceivable issue that could come up in the history of the Republic.
But the whole idea behind the Constitution is that it contains explicit grants of power to the federal government, with some prohibitions on the states. It wasn't intended to be an entirely free-flowing expression of whatever the fertile imaginations of judges (or the political class) could design. It by definition does have some exact and discernible limits, and those trying to answer constitutional questions should try to understand what the ratifying public thought they were delegating to the federal government.
I was reminded of this when reading Yuval Levin's critique of the ruling: "“The law as the Supreme Court has rewritten it today would not have passed." Such rewriting is a textbook example of judicial activism. It also provides a good test for constitutional interpretation: if judges must reach their conclusions by rewriting a constitutional provision in a way that it would not have been ratified, and is unsupported by any amendment that was subsequently ratified, they are reaching conclusions at odds with the concept of a written Constitution.
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