I cited it in my Prospect piece yesterday, but for people interested in the history of the Commerce Clause, I strongly recommend Jack Balkin’s forthcoming article. I would add the caveat that I don’t think that Balkin’s liberal originalism overcomes the objections I have to originalism (in whatever variant). I don’t believe his evidence is sufficient to establish that there was an uniform “original meaning” of the commerce clause. There is, as Paul has argued several times recently, no technical legal answer to whether the individual mandate is unconstitutional. (And I don’t think that Balkin would disagree.)
However, in context, his debunking of conservative attempts to establish an alternative original meaning are more than sufficient. Some conservatives would like to portray the debate as one between “federalists” who are bound by the Constitution and defenders of the constitutionality of the ACA, who are merely being expedient. But the very narrow conception of the Commerce Clause that the Supreme Court adopted in the late 19th and early 20th centuries was not the dominant view at the time of the founding. Marshall’s approach in Gibbons v. Ogden was, if anything, more prevalent at the time of the founding. And I certainly agree with Balkin that seeing the central purpose of the Commerce Clause as giving “Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action” is both more normatively attractive and provides a better explanation for the Court’s actual jurisprudence than alternative approaches do. And under this standard, the constitutionality of the mandate is an easy case: the regulation is essential to a legitimate broader regulatory regime and solves am obvious “free rider” problem.
There seems to be some confusion in comments here about what “putting women on a pedestal” in the pejorative sense means. This, for instance, isn’t that. For an actual example, we’ll need to turn to Associate Justice Anthony M. Kennedy, whose majority opinion in Carhart II was faithful enough to cutting-edge anti-choice rhetoric to be an instant classic of the genre:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow. [Emphasis of particularly relevant part mine.]
You see, the state needs to protect irrational women from making choices they might regret. And this can be accomplished through legislation that forces women to use medical procedures that pose greater medical risks without being rationally connected to any legitimate state interest whatsoever.
In summary, “protecting” women by threatening women’s health is paternalism in the bad sense. Citing the physical burdens of pregnancy as a reason to protect women’s reproductive freedom is not. See the difference?
…since we have a claim in comments that bans on D&X abortion are about protecting fetal life, I guess I have to quote John Paul Stevens again:
Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14.
I also note that at oral arguments in Carhart II Bush’s Solicitor General conceded that the statute would not protect fetal life.
Shorter Daily Tucker: “Too many people are trying to shift the definition of ‘judicial activism’ away from its true meaning: judicial decisions that entail policy outcomes conservatives disagree with.”
My favorite part:
Words mean things, and the power “to regulate commerce…among the several states” does not mean the power to tell Americans what they must buy.
Words, indeed, mean things. Selling health insurance is “commerce” by its most obvious definition (and long-standing Supreme Court definition), clearly the market for health care is “interstate,” and even Vinson (however indavertently) concedes that the mandate is integral to this set of regulations of interstate commerce. So I’m afraid you’re going to have to do better than that…
Having discussed the limitations of positivist political science, I attempt to figure it out using my highly sophisticated “educated guess” method. Although it’s a “sovereign immunity” case and not a commerce clause case, I think that Hibbs is a better guide to Scalia’s vote than Raich. Upholding a law that’s about federal hippie-punching is one thing. Actual progressive legislation is another, and of course to conservatives the individual mandate might be even more oppressive tyranny than the Family and Medical Leave Act. Even so, my gut says that Kennedy won’t go along, at least fully. As long as he doesn’t vote to strike the whole act, I can live with it.
I’ve said this before, but I think it’s worth adding a few caveats to Dylan Matthews’s roundup of political science literature on the Supreme Courts. Particularly when the attitudinal model is used to defend very strong forms of legal realism, it’s worth noting that the model only applies to Supreme Court votes on the merits. Given that virtually by definition cases in the modern era only reach the Supreme Court when there is substantial legal ambiguity involved, it’s not surprising that politics generally drives votes in politically ambiguous cases. But the law matters significantly more in determining what kind of cases the Supreme Court hears and which it doesn’t, and politics alone also can’t explain why votes on the merits are structured around some issues than others. (Although Scalia and Thomas presumably believe that abortion should be illegal, their jurisprudence doesn’t require states to make it illegal.) There are also times when legal policy preferences aren’t the same as policy preferences per se. If you look at it as a case about federalism, the attitudinal model gets 7 of the 9 votes on Raich right; if you look it as a case of whether the federal government should strictly enforce anti-marijuana statutes, it arguably gets 7 of 9 votes wrong. Bush v. Gore is the absolute poster child for purely political jurisprudence, and yet if you look at it as an equal protection case it gets all 9 votes wrong.
For those interested, I’d strongly recommend Mark Graber’s brilliant and very readable essay on models of decision-making and judicial deference during wartime. One crucial limitation of political science modeling is that there’s no objective way of determining what constitutes sound legal practice or of effectively isolating “law” from “politics.” Supreme Court justices always have some discretion, and they’ve always been constrained in many ways from voting pure political preferences.
There’s a lot of egregious hackery in Vinson’s opinion yesterday. The Wall Street Journal has crossed some of Vinson’s hackery with some of its own. I’m not sure if this Vinson/WSJ law office history has topped Vinson’s assertion that not buying health insurance has no effect on markets in health insurance — it’s a high bar — but this attempt to enlist John Marshall [!] in the service of a narrow commerce clause some pretty impressive hackwork:
Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison’s notes at the Constitutional Convention and the jurisprudence of the first Chief Justice [sic!], John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.
Did Marshall believe that the Commerce Clause should be essentially limited to the elimination of trade barriers? Well, I happen to have John Marshall right here, and:
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.
Implying that Marshall shares the modern libertarian conception of the commerce clause is an act of remarkable ignorance. More on this later this afternoon, but citing Marshall on behalf of the side he spent his career arguing against is embarrassing. I can’t wait to see the Journal op-ed citing Marshall in defense of Hudson’s interpretation of the necessary and proper clause…
I remember when I used to joke about Republicans bringing back Hammer v.Dagenhart. [Update: more explanation here.] Senator Mike Lee provides the punchline himself.
It’s worth mentioning here that, Lee’s claims that Hammer was a regrettable outcome compelled by the Constitution notwithstanding, the majority’s reasoning was in fact remarkably specious. The law struck down in Hammer wasn’t even a general ban; it merely prevented good made with child labor from being shipped across state lines. As Holmes noted in his dissent, the idea that this regulation wasn’t an excerise of the federal government’s power to regulate interstate commerce was absurd, and moreover the Court’s conservatives were very inconsistent about applying this highly dubious constitutional requirement:
The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. Congress is given power to regulate such commerce in unqualified terms. It would not be argued today that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid. At all events, it is established by the Lottery Case and others that have followed it that a law is not beyond the regulative power of Congress merely because it prohibits certain transportation out and out….So I repeat that this statute, in its immediate operation, is clearly within the Congress’ constitutional power. [cites omitted]
The question, then, is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control. I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that the most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State.
Hammer was not only a bad outcome, it was a bizarre reading of the Constitution. It’s amazing that a United States Senator would cite it as a model in 2011.
To follow up on Greenwald’s response to William Galston’s call to make more people subject to involuntary civil confinement, it’s worth discussing the case in which the Supreme Court held that the state cannot “constitutionally confine…a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” The underlying facts of O’Connor v. Donaldson are disturbing, and should (to put it mildly) give pause to those who would use the Tuscon shooting to expand the state’s powers of civil confinement. From Stewart’s opinion for the Court:
The testimony at the trial demonstrated, without contradiction, that Donaldson had posed no danger to others during his long confinement, or indeed at any point in his life. [Hospital superintendent] O’Connor himself conceded that he had no personal or second-hand knowledge that Donaldson had ever committed a dangerous act. There was no evidence that Donaldson had ever been suicidal or been thought likely to inflict injury upon himself. One of O’Connor’s codefendants acknowledged that Donaldson could have earned his own living outside the hospital. He had done so for some 14 years before his commitment, and, immediately upon his release, he secured a responsible job in hotel administration.
Furthermore, Donaldson’s frequent requests for release had been supported by responsible persons willing to provide him any care he might need on release.
This case receives a fairly lengthy discussion in The Brethren, because it was a classic example of Burger’s incompetent handling of the Court — he assigned the opinion to himself despite the other justices at conference seeming to want a different focus, and the result was that he ended up receiving zero joins for his would-be majority opinion. But what’s striking for our purposes is that while Woodward and Armstrong report significant disagreement about the appropriate remedy, with the possible exception of Burger every justice (including Rehnquist!) was appalled by what had been done to Donaldson; this wasn’t a Brennan/Marshall crusade.
There are very good reasons, in other words, to confine civil confinement to cases where a person poses a demonstrable danger to herself or others. In retrospect, we can see that Jared Lee Loughner was genuinely dangerous rather than merely unpleasant or eccentric, but making these calls before the fact is overwhelmingly likely to produce an intolerable number of false positives. Criminalizing mental illness is a bad idea, and we should not let the Giffords shooting lead us in that direction.
Some radical Trotskyites on the Kentucky Supreme Court decided to ignore the new, annotated Federalist Society version of the Constitution, which includes the crucial provision “please disregard all previous clauses if the War (on Some Classes of People Who Use Some) Drugs is involved,” resulting in oral arguments at the Supreme Court earlier this week. The case involves a warrantless search undertaken because police searching for another offender believed they smelled drugs being consumed behind another door. Dahlia Lithwick’s report suggests a strong likelihood that the Supreme Court will use the Federalist Society version and are therefore “poised to eviscerate the warrant requirement in a broad class of “exigent” situations.” Depressing, although far from surprising. The whole thing is worth reading, but I especially liked this passage about some, ah, method acting from Kennedy:
Here’s Chief Justice John Roberts, for example, describing the average jailbreak: “I assume the ordinary prison escape is—I don’t know—over the wall, under the tunnel, or, you know, while the guard’s looking a different way.” Justice Anthony Kennedy wonders aloud: “This may be a bit rudimentary, but can you tell me why isn’t the evidence always being destroyed when the marijuana is being smoked? Isn’t it being burnt up?” And then Justice Antonin Scalia expounds on the need for zealous police enforcement powers, up to and including the right to search your home without a warrant, because, as he explains, “there are a lot of constraints on law enforcement, and the one thing that it has going for it is that criminals are stupid.”
Whoa, like, deep, man. I think we might want to consider some warrantless, no-knock seraches of chambers at the Supreme Court…
I have some thoughts about what the Supreme Court’s refusal to grant cert in a commerce clause case (with an angry dissent from Thomas) might mean for the constitutionality of the individual mandate. The short version: probably not much. It does make it an odds-on favorite that Scalia will vote to hold the mandate unconstitutional, but given that the case involves the regulation of health care rather than pot this isn’t shocking. Otherwise, we don’t know a lot more than we did — I’m still guessing there will be 5 votes to uphold the mandate, but that’s because I believed that ex ante.
Via Ian Millhiser, I am shocked and appalled by this un-American passage in Antonin Scalia’s solo dissent today:
The canon against superfluity is not a canon against verbosity. When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis.
Someone needs to tell the Supreme Court that we need to rely on good, old-fashioned American standards of statutory construction, and keep dirty foreign law out of it!
Seriously, there is of course nothing the slightest bit objectionable about citing a foreign court as part of a larger argument about American law. This whole “citing foreign law” controversy, which Scalia has at times attempted to stoke, is just culture war rube-running, invoked solely to argue against outcomes people disagree with for independent reasons. And citations of foreign law are hardly just a recent development. Does anyone think it was illegitimate of Maclean to cite the “general law of nations” in his Dred Scott dissent?
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In pointing out that it’s hard to square Antonin Scalia’s assertions that the 14th Amendment provides no protection for gender equality with the rest of his jurisprudence, I didn’t even haul out the heaviest artillery. I think it’s safe to say that none of the framers or ratifers of the 14th Amendment thought they were voting for the principle that “states have to have uniform standards for vote counts and recounts,” let alone “states have to have uniform recounts if non-uniform ones might lead to the defeat of the candidate favored by a majority of the Supreme Court, but not in any other case.”
…on a somewhat realted note, Scalia’s originalist take on pizza reminds me of Sherry and Faber on latkes and constitutional theory. Of course, the Scalia entry should be modified to read “unless the election of George W. Bush requires making latkes, in which case any recipe will work.”