The Court has upheld other federal laws that involved equally substantial, if not more substantial, incursions on the general police powers of the States and the autonomy of individuals. If, as Wickard shows, Congress could regulate the most self-sufficient of individuals—the American farmer—when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it. And if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for selfmedication, Raich, 545 U.S. at 6–7, and if it could do so even when California law prohibited that marijuana from entering any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.

Yglesias then comments:

To me, the beginning of wisdom on the Affordable Care Act litigation is just to start with the observation that lots of people think Wickard and Raich were wrongly decided. Which is fine. But “I want the courts to overturn existing precedents and strike down a new law” is different from “Congress has committed an unprecedented infringement of my liberty.”

Let’s assume Wickard and Raich were rightly decided.  As the above makes clear, those cases involved government regulation of affirmative conduct — namely, a prohibition on growing certain amounts of wheat and marijuana.  The Affordable Care Act does the exact opposite: it requires you to do something — namely, buy health insurance — for no reason other than you being alive.

Putting “infringement of liberty” hyperbole aside, this truly is an unprecedented form of congressional regulation of commerce.  In order for healthcare reform to survive in the Supreme Court, supporters would be wise to embrace this fact and argue instead why current commerce clause jurisprudence should be extended to cover such laws.

I go further, and affirm, that Bills of Rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the National Government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for Bills of Rights.

First of all, I try not to sweat the Founding Fathers too much, since it connotes a certain level of weirdness in today’s society with which I care not to be associated.  But that aside, those guys were insanely smart.  I suspect we can all agree on that.

Moving on, Matt writes “that relying on history and exegesis of centuries-old documents (as opposed to more recent precedents) as the basis of our legal system is a deeply problematic concept.”  He might be right there, but that’s another debate.   If the point of a constitution is to lay a permanent foundation for society, then one would think that both lawmakers and courts should strive to be consistent with whatever the constitution sought to accomplish.  Of course, when precedent, rather than the Constitution itself, supports one’s ideological predispositions, precedent shines a lot brighter.  And vice-versa, no doubt.

But what’s interesting here, and what Matt fails to consider, is that Hamilton’s language seems to make pretty plain how limited the federal government’s powers were thought to be under the Constitution — so limited, in fact, that Hamilton went so far as to say there was no need for a Bill of Rights to protect the people.  Congress did not have the power to even pass laws abridging speech, for example.  In Hamilton’s mind, there was simply no need to protect that which was unassailable.

Funny how the centuries turned out.  Supreme Court precedent certainly gives Congress more authority than Hamilton thought the Constitution gave it back then.  My guess is that Hamilton would either be thankful today that they included a Bill of Rights, or horrified at how much power that little commerce clause in fact was.  Perhaps a bit of both.

Goodwin Liu is exactly the kind of person I want on a federal appeals court. He’s solidly left-leaning on social issues and, unlike anyone currently on the Supreme Court, he argues that courts have an obligation, under the Fourteenth Amendment, to preserve a basic safety net. That’s old-school judicial liberalism of the type William O. Douglas, William Brennan and Thurgood Marshall propounded in the 1970s, and hasn’t been seen much since, and it’s a very necessary counterbalance to the judicial right’s revival of the New Deal vintage argument that the Constitution necessitates laissez faire economic policy.

I don’t know how many judges are actually making the Lochner-esque argument that freedom of contract, or broader laissez-faire economic policy, is implicit in the Fourteenth Amendment’s due process clause.  Any such argument is nonsense.  But Ezra Klein’s attempt to argue that “courts have an obligation, under the Fourteenth Amendment, to preserve a basic safety net” is equally nonsensical.  It’s essentially the exact same flawed argument, but tailored to support Klein’s own version of American society.

The bottom line is that the Fourteenth Amendment simply does not address this issue, just as it doesn’t address a host of other issues people love to proclaim it does.  And when the Constitution is silent on something, we pass laws democratically to make the changes we want.  We don’t bend over backwards to try to make the Constitution reflect our own unique preferences.  This is not how democratic societies should operate.

I personally think we should have some form of a safety net in this country. But I certainly don’t think it’s mandated by the Constitution.  If people want to abolish every entitlement we have today, I’m not going to wave the Constitution in their faces.  I’m going to say it’s a bad idea.  And then vote for the guy who agrees with me.

Let me put one fundamental point front and center that unfortunately often needs to be repeated: it is entirely possible to abhor racism and discrimination of any sort and still be against laws that legally prohibit private discrimination.  First, these laws inherently narrow the scope of what the First Amendment protects by limiting our right to associate with whom we wish.  Second, the question of whether the federal government can constitutionally reach private discrimination is completely different than the question of whether the federal government can constitutionally reach public discrimination.  The latter can be accomplished under section 5 of the Fourteenth Amendment because the requisite state action exists.  The former has nothing to do with state action and thus can only be reached through Congress’s commerce power. These are two entirely different legal questions.

Paul touched on the free speech issue (though not sufficiently) but he didn’t attempt to explain the question surrounding the federal government’s power to prohibit private discrimination.  He mentioned the advantages of having such decisions made locally but didn’t question the federal government’s power to pass such laws.  As a result this important legal nuance went unaddressed and remains so in all the post interview buzz in the media.

This is a conversation worth having.  We shouldn’t evaluate the propriety of a federal law based solely on whether we like what it’s trying to do.  As inconvenient as it might be, we also have to consider whether government has the power to do it.

But I’m also starting to place a bigger premium on a particular benefit of originalism: the benefit of progressing democratically.  The practice of striking down democratically passed laws is, to me, the most problematic aspect of judicial activism.  As I mention in the posts linked above, opponents of originalism erroneously conflate the theory with “no progress.”  But by refusing to articulate new and non-existing rights in the Constitution, the Court would promote that same progress through democratic processes.  I very much prefer slow and democratic progress (assuming I’m for the substantive result) to quick and judge-made progress through incorrect interpretations of the Constitution.  But, more to the point, I almost have a general preference for any democratic law to any alternative articulation by the Supreme Court if it involves striking down that law.

Mark Tushnet wrote a book a couple of years ago called Weak Courts, Strong Rights, of which I’ve only read a snippet.  He proposes a “weak-form judicial review,” which “respects the right . . . for majorities to prevail when, acting through their representatives, they enact statutes that are consistent with reasonable interpretations of the constitution even if those interpretations differ from those the courts offer.”  Considering that the power of judicial review is mentioned nowhere in the Constitution, much less the ultra-powerful version exercised by federal courts today, there is no constitutional problem with this kind of review, putting aside the whole “it is emphatically the province of the judicial branch to say what the law is” thing articulated in Marbury v. Madison.

Such an interpretation has several benefits.  First, it encourages democracy even more than an originalism that invalidates laws in the name of original intent.  Second, it wouldn’t hinder federal, state and local governments’ pursuit of legitimate policy objectives.  Take the three cases mentioned in the previous two posts as examples.  Should the Second Amendment  suddenly prohibit a crime-ridden city from regulating and banning certain fire-arms, considering that the law had been on the books for over 30 years — even if the Second Amendment protects an individual right?  Should the Fourteenth Amendment prohibit using race to integrate schools, when the purpose of such integration — and the Fourteenth Amendment itself — is/was to help disadvantaged African Americans?  Should the First Amendment’s guarantee of free speech prohibit the government from banning particular corporate campaign expenditures when the overriding purpose is to preserve the integrity of our basic political process and to prevent rich speech from drowning out poor speech?

Regardless of where one comes down on what the Constitution mandates in these instances, I find an interpretation of the particular constitutional provisions that permits these types of policy preferences to be entirely reasonable. Crime-prevention, diversity/integration, and preventing corruption are all compelling justifications for the laws at issue in those cases, and, putting aside the Court’s strict scrutiny jurisprudence, would seem to pass a reasonableness test.

A third benefit of this approach is that it would seem to lessen the likelihood of politically motivated decisions cloaked in legal justification.  It would be more difficult for an activist judge to implement an alternative policy from the bench if the law merely had to represent a reasonable interpretation of the Constitution.  This would also create a truer version of political accountability, as the populace is not free to overturn a Supreme Court decision with which it disagrees, absent a constitutional amendment.

Clearly this isn’t the way our Constitutional system works at the present.  And I’m not even entirely convinced that it’s a better method.  But I can’t help but be sympathetic to a form of judicial review that tends to defer to democratically passed laws as opposed to one that permits judges to permanently prohibit a particular brand of policy by striking down such laws — regardless of whether the decision is originalist or not.  Under this type of analysis, all of the cases we’ve discussed — including Roe and Lawrence – may have been wrongly decided.