Professor Jost Replies:

On The Politico’s Arena, Professor Timothy Stoltzfus Jost, of Washington and Lee, replied to my Politico post on the constitutionality of a health insurance mandate (that I reproduced here yesterday):

I interpreted Fred’s question to ask whether the current Supreme Court would uphold the constitutionality of an individual mandate, not to ask my for my personal views of the Constitution. I would be willing to wager with Prof. Barnett that the Supreme Court would uphold such a mandate given the Court’s expansive reading of the Commerce clause. In fact, I don’t think the vote would be close.

Here is my response:

I thank Professor Jost for his clarification. I find his interpretation of the question, “Is ‘mandatory insurance’ unconstitutional?” illuminating of how most constitutional law professors, along with politicians and commentators, view the Constitution. The question did not expressly ask for a prediction of how the Supreme Court would rule, unless you assume that the Constitution actually means whatever the Supreme Court says it means. According to that view, you could not criticize however the Court decides because there is no external standard against which to assess the constitutionality of a statute. But we do have such an external standard: the written Constitution.

Asking whether “mandatory insurance is unconstitutional” is not asking for a “personal opinion” on constitutionality but for a professional opinion on the proper meaning of the Constitution. The answers to this question given by my co-blogger Jon Adler and by Mark Tushnet represent a professional opinion about the meaning of Supreme Court precedents–such as Gonzales v. Raich–not the Constitution itself. Assuming that Supreme Court precedents constitute “the Constitution” empowers long dead judges to rule us from the grave. Sorry, that is hyperbole. It allows the opinions of justices to trump the meaning of the written Constitution.

Under our system, the Supreme Court has the last word on whether a statute challenged as unconstitutionality will be upheld or nullified. But it does not have the power to change the written Constitution, which always remains there to be revived when there is a political and judicial will to do so. For example, after the Supreme Court gutted the Fourteenth Amendment during Reconstruction, it remained a part of the written Constitution for a future more enlightened Supreme Court to put to good use. By the same token, the current Supreme Court can still make serious mistakes about the Constitution. Because the Constitution is in writing, there is an external “there” there by which to assess its opinions.

But there is one final twist: if the Supreme Court adopts a “presumption of constitutionality” by which it defers to the Congress’s judgment of the constitutionality of its actions–as it has and as “judicial conservatives” urge–and the Congress adopts Professor Jost’s view that “unconstitutionality” means whatever the Supreme Court says, then NO ONE EVER evaluates whether a act of Congress is or is not authorized by the Constitution. A pretty neat trick–and a pretty accurate description of today’s constitutional law.

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