Chuck Lane: Why “Living Constitutionalists” Underestimated the ACA Challenge

Chuck Lane has this very insightful piece in today’s Washington Post responding to Akhil Amar’s cri de coeur that his academic life would be a fraud if the Court invalidates the individual mandate.  In a piece worth reading in its entirety, Lane suggests that legal academics today “resemble the conservative leaders of the bar at the dawn of the New Deal. President Franklin Roosevelt’s alphabet soup of federal programs ran counter to established doctrine denying the constitutionality of economic and social legislation, state or federal. Steeped in that tradition, many legal experts recoiled in horror at FDR’s plans.”  He then makes the seemingly obvious “living constitution” observation that the Supreme Court‘s interpretation of the Constitution evolves with the changing times:

Amid a Great Depression, and under tremendous pressure from a popular president and his huge congressional majority, however, this expert consensus gave way. The Supreme Court abandoned its laissez faire understanding of the Constitution’s Commerce Clause (among other provisions) so as to permit New Deal programs.

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.”

In the 1930s, expanding federal power was innovative, promising. By blessing it, the court aligned itself with the wave of the future, in this country and globally. Ditto for the 1960s. Much of the legislation that resulted — from Social Security to the Voting Rights Act — was indeed progressive.

Today, however, there is nothing new about federal intervention — and much evidence from the past 70 years that big programs produce inefficiencies and unintended consequences.

The post-New Deal consensus about the scope of federal power has broken down amid national, and global, concern over the welfare state’s cost and intrusiveness — a sea change of which the tea party is but one manifestation. Obamacare itself, which has consistently polled badly, fueled that movement.

Much has been made of the fact that Republicans had no objection, constitutional or otherwise, when the individual mandate first surfaced. But that was two decades ago. In today’s changed intellectual, fiscal and political environment, seemingly lapidary constitutional phrases such as “commerce . . . among the several states” can acquire fresh meaning, as they did for the New Deal and at other points in the past.

The irony is that legal academics are originalists.  They just believe in enforcing their interpretation of the original meaning of the New Deal and Warren Court decisions, rather than that of the written Constitution.  But if anything “lives” or evolves, it is constitutional law.