Is the Roberts Court Embracing a "Living Constitution"

I hardly know what to say in response to this editorial by Charles Lane, attempting to analyze why the Supreme Court might embrace a newly invented doctrine in order to reverse "Obamacare". Lane points to a bit of hyperbole from Akhil Amar, who suggests that a 5:4 decision reversing the Affordable Care Act will prove that the Supreme Court now decides cases based on politics, money, party and party loyalty, not the rule of law. He then snipes at law professors as "more liberal than the general public", adding,

Remarkably few of them have shown the perspicacity of Amar’s Yale colleague Stephen Carter, who has written: “Both sides have a point. The mandate to purchase health insurance does indeed run counter to the libertarian strain of the American tradition, and the arguments in support of federal power don’t have a logical stopping place. On the other hand, one must also recall the egalitarian aspects of the American tradition.”

To the extent that Carter's comment is fair, it's a fair statement of politics, not of law. There's nothing in the Constitution that expresses that legislation must respect this amorphous "libertarian strain" that Carter reads into the "American tradition". If you have any libertarian tendencies, you don't have to look very hard to find a Supreme Court ruling that will make you choke on your coffee. Seriously - pick a tenet of libertarianism, any tenet, and I'll find you a case that contradicts it.

The position that "arguments in support of federal power don’t have a logical stopping place" is not actually true - if you look at the policies of the various states, virtually all of which have insurance mandates of one form or another and one of which has a health insurance mandate akin to the one at issue in the ACA, you'll not find even one example of a state going beyond a "logical stopping point". What Carter is actually observing is the application of a slippery slope fallacy to the insurance mandate, in essence, "If something might occur then it will occur". The same fallacy can, of course, be applied to the regulation of activity under the Commerce Clause - or, for that matter, pretty much any constitutional argument.

It is much easier to assert a slippery slope argument, pulling an absurd example out of the air or off of a right-wing talk show, and to suggest that "If we allow an insurance mandate the government can make us eat broccoli", than it is to address the actual issues implicated by the case. But when you hear somebody resort to the slippery slope instead of addressing the realities of the healthcare market, you can pretty much take for granted that the reason they are doing so is that they are incapable of addressing the subject in a logical manner - at least without conceding most or all of the case made by the proponents of the ACA.

The counter-argument described by Carter is no better. Just as there's no "libertarian strain" clause in the Constitution, there's no "egalitarian" clause. When the Constitution speaks of equality, it is in the 14th Amendment's "Equal Protection" clause. The General Welfare Clause does not imply legislating people into some form of economic equality. Being treated as an equal by the state, by the courts and by the law, is something entirely different from a legislated economic equality.

While Carter does present two political philosophies that are in tension in relation to healthcare reform in general, they're not in conflict when it comes to the health insurance mandate. If there's a mandate in which everybody must buy insurance, the sensitivities of libertarians will be offended but people are being treated as equals by the law. If there's no mandate, but the law requires the provision of certain medical care to the uninsured whether or not they can pay for that care - the status quo - again libertarians are offended but people are being treated equally.

There are plenty of Supreme Court cases that advance egalitarianism - the line of cases that have given constitutional level protection to programs and policies that financially benefit the less fortunate (such as the right to counsel in criminal cases), or require that if the government provision of services (such as education), members of the community be treated as equals. But within the context of healthcare reform Carter appears to be speaking of altruism, the idea that the better off should provide for the poor, which is much more of a political philosophy, and much more of an argument for the subsidies that are not presently subject to a constitutional challenge, and appear to be constitutionally noncontroversial, as opposed to the mandate that is under discussion.

Lane asks, in advance of the Court's ruling, "What, then, led the academics to misread this case?" The "misreading" being that scholars did not expect the Supreme Court to be receptive to a newly invented distinction between regulating "activity" versus "inactivity", a distinction that quickly reduces the analysis of the issue to a semantic game, as opposed to precedent. And there's the answer: If you recast the analysis of the case that kicked off the modern approach to the Commerce Clause, Wickard v Filburn, you can transform it from a case that regulates activity ("You can't grow wheat beyond the legally imposed crop limit") and instead regulates inactivity ("You must buy your feed grain from other producers").

Perhaps the extent of the sophistry is lost on Lane, but fundamentally that's what Amar is describing - the extent to which opponents of the ACA are willing to invent new legal doctrines, eschew logic in favor of the slippery slope, and ignore or reverse almost a century of case law in order to achieve an outcome that is, at heart, political. Amer did not say that his faith in the court will be lost if the ACA is reversed, in whole or in part, by a larger majority - he was alluding specifically to a split along political lines, implicitly with the majority advancing a political argument as it's "legal" reasoning.

In explaining how the Court might come to dramatically change its approach to Commerce Clause cases, Lane presents an awkward attempt to distinguish law from politics:

I don’t think this history proves that “politics, money, party and party loyalty” crassly determined the decisions of the 1930s. If that were true, why accord them precedential weight today?

Rather, what it shows is that the United States periodically redefines the role of the federal government in society, in a process that is both political and legal — and, sometimes, more revolutionary than evolutionary. In that sense, we do have a “living Constitution.”

If it needs to be said, the reason you give precedents, good or bad, "presidential weight" is because - as was noted up front - they're precedents. Several members of the Court have made clear that they do not feel any reluctance to overrule cases they view as legally unsound, but even they have traditionally hesitated at reversing cases that are integral to our modern state and government. There is nothing in the Constitution that mandated the libertarianism of the Lochner era, nor that prevented the Court's shift to an expansive view of the Commerce Clause in Wickard, but let's not pretend that we could return to the Lochner era without a massive disruption of our government and society. The better approach would be for the Supreme Court to defer to the political branches on matters of politics.

When Lane suggests that opponents of "Obamacare" are embracing a "living constitution", and are "spotting [a] historical opportunity [to reinvent the Commerce Clause] and making the most of it", he's correct. They are taking the position that the objective reading of the text of the Constitution should take a distant back seat to the political issues of the day, and that if you lose at the ballot box you should attempt to get politically sympathetic judges to convolute new arguments to reverse the opposing party's legislative accomplishments. A conservative Justice might respond,

If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.

So yes, it will be interesting to see if, as Lane suggests, a 5:4 conservative majority will reject the idea that political issues should be resolved by elections, that constitutional analysis should not turn on the actual language of the Constitution, that it's less important to ask whether Congress has the power to do something than it is to look at its choice of words when drafting legislation that falls within the scope of its powers, and very much bring the Constitution to life.