The Volokh Conspiracy

In this recent post, I took issue with Justice Clarence Thomas’ apparent recent statement that African-Americans were not considered part of the “we the People” referred to in the Preamble of the Constitution. In conveying what Thomas said, I relied on a report in the Washington Post, which was echoed by many other media sources.

However, the video of Thomas’ dialogue with Yale law professor Akhil Amar and a transcript of his remarks obtained by VC reader Andrew Hyman suggests that his remarks were a lot more ambiguous. Here’s the relevant part of the transcript (which occurs roughly between 8:00 and 12:00 of the video):

AKHIL AMAR: ...I guess I’d like to start our conversation — it seems fitting — with those — with the words that the Constitution starts with, “we the people,” and how that — what that phrase means to you, how that phrase maybe has changed over time thanks to amendments and other developments.

What do you mean — who are “we”? You know, who is this “we”? When did — when did folks like you and me become part of this “we”?... [Note: Akhil Amar is an Indian-American]

JUSTICE CLARENCE THOMAS: Well, you — the — well, obviously, it didn’t — it wasn’t perfect. That’s an understatement. But you grow up in an environment, at least I was fortunate enough to, where we believed that it was perfectible....

So when I think of we the people, there is a lot, I think, of the exclusion but the possibility and then the eventuality of the inclusion of you and me. I mean, look at — no one cares that, what, 40 years ago, you and I would not be sitting here talking about the Constitution of the United States except to say we’re excluded.

The last part of Thomas’ statement – that the inclusion of nonwhites was only an eventual “possibility” could be interpreted to mean that originally they were categorically excluded. But the statement is much more equivocal than the Washington Post’s summary, which stated that “Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did not include people who looked like him.” I think the Post’s interpretation of his remarks is plausible. But it’s also plausible to suggest that he meant that blacks, while not completely excluded at the Founding, were still subject to horrendous discrimination and only fully included as equal citizens many decades later.

I am grateful to Mr. Hyman for bringing this issue to my attention and for obtaining the transcript.

Some commenters and others have asked whether the distinction between categorical exclusion on the basis of race at the time of the Founding and “mere” extensive discrimination actually matters.

As I noted in my original post, the issue has great historical significance because it was one of the main points of disagreement over the Dred Scott decision. If at least some blacks were part of “We the People” at the time of the Founding, Chief Justice Taney’s notorious majority opinion is wrong, for reasons well captured in Justice Curtis’ dissent.

But the issue also has some relevance to modern debates over the legitimacy of originalism. Some critics of originalism have argued that the original Constitution was illegitimate because it excluded blacks. There is little doubt that the original Constitution tolerated severe racial injustices, most notably slavery. But there is nonetheless a difference between a Constitution that left slavery and other injustices alone (in part because abolition was politically impossible at the time), and one that categorically denied all blacks any “rights which the white man was bound to respect,” as Taney put it.

Obviously, one can reject originalism for a variety of reasons even if Taney’s claim was wrong. And it is possible to endorse originalism even if he was right. But the case against originalism does become stronger at the margin if Taney was right, and weaker if he was wrong.

UPDATE: I should note that when I say abolition of slavery was “politically impossible” at the time of the Founding, I mean nationwide abolition. Abolition in the northern states was not only possible but actually beginning to happen.

In a recent public forum, Supreme Court Justice Clarence Thomas made news by conceding that blacks were not part of “We the People” at the time of the Founding in the 1780s:

It is true, Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did not include people who looked like him.

But the Declaration of Independence did, he contended, and that was something that a black kid growing up in Savannah, Ga., was told early on.

In reality, African-Americans were not categorically excluded from the “people” who established the Constitution. The “We the People” in the preamble of the Constitution refers to those people who “ordain[ed] and establish[ed] this Constitution for the United States of America.” And, despite the existence of brutal slavery and racial discrimination, some blacks were included in that group. As Justice Benjamin Curtis pointed out in his dissent in Dred Scott v. Sandford, at least five states at the time of the Founding allowed free blacks to become citizens on the same terms as whites, and also gave them the right to participate the elections for the state conventions that ratified the Constitution:

It has been often asserted that the Constitution was made exclusively by and for the white race... [But I]n five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration that it was ordained and established by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established.

Earlier in the opinion, Curtis explained why citizens of states at the time of the Founding were legally citizens of the United States as well, and described the relevant laws of the five states he refers to: New Hampshire, Massachusetts, New York, New Jersey, and (most surprising) the southern state of North Carolina.

None of this negates the terrible reality that the vast majority of African-Americans in 1787 were slaves, and as such clearly were excluded from political participation and otherwise severely oppressed. Even free blacks were also subjected to extensive official discrimination, including exclusion from the franchise in several states. Nonetheless, it is not true that African-Americans were completely excluded from the “We the People” who established the Constitution.

The myth that blacks were categorically barred from citizenship and political participation at the time of the Founding was popularized by defenders of slavery in the nineteenth century, most notably Chief Justice Roger Taney in his majority opinion in Dred Scott; Taney advanced this idea to justify his claim that, at the time of the Founding and under the Constitution, blacks “had no rights which the white man was bound to respect.” In the twentieth century, ironically, Taney’s argument was recycled by some left of center critics of the original Constitution. The disreputable proslavery origin of this theory does not prove it wrong. But the historical evidence does.

UPDATE: There is room for possible dispute over whether Justice Thomas actually said what the Washington Post and other media reported he said. I discuss the issue in this follow-up post.

If you want to mark Constitution Day today — the 225th anniversary of the Convention’s presenting the Constitution for ratification — you might have a look at The Heritage Guide to the Constitution, which includes essays on the original meaning and current interpretation of each provision of the Constitution. (One of the essays, on the Free Speech and Free Press Clauses, was written by yours truly.)

I’m busy today teaching two classes, but I can’t resist a quick response to Akhil’s rejoinder.

First, while I have a great deal of respect for Jed Rubenfeld and Laurence Tribe, I don’t find their adoption of the “Lochner as redistribution” thesis terribly compelling.
Professor Tribe’s 1972 article adopts a surprisingly sophisticated understanding of Lochner–surprising only because Lochner scholarship was still in its infancy at that time. But Tribe, by necessity, didn’t have access to the wave of scholarship that has been published since, mostly by Ph.D. historians, who try to avoid the normative concerns that typically animate law professors. Beyond my own work, this literature includes, just for example, David Mayer, Liberty of Contract (2011); Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860-1910 (2004); Barry Cushman, Rethinking the New Deal Court (1998); James W. Ely, Jr., The Chief Justiceship of Melville W. Fuller: 1888-1910 (1995);Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993); Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (1992); William E. Nelson, The Fourteenth Amendment (1988); Michael J. Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s (2000); G. Edward White, The Constitution and the New Deal (2000); Charles W. McCurdy, The Roots of “Liberty of Contract” Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 Sup. Ct. Hist. Soc’y Y.B. 20; Michael Les Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 L. & Hist. Rev. 293 (1985); Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L Rev. 1 (1991); and Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 B. U. L. Rev. 881 (2005).

Rubenfeld’s 2002 article, meanwhile, cites none of this literature, and indeed nothing at all to support his point of view beyond a couple of leading cases. This reflects something of a culture clash between historians, including historians who work at law schools, and constitutional theorists. The former engage in serious historical investigation to try to discover the underlying intellectual and social forces that led the Supreme Court to decide cases as it did. This involves both reading a very broad range of cases, and also secondary materials. Law professors, by contrast, tend to read a few leading cases from an era–like Lochner, Coppage v. Kansas, and Adkins v. Children’s Hospital–and then draw broad conclusions about what was wrong (or right) with the Court’s jurisprudence. (Sunstein’s famous article on Lochner, for example, cited fewer than a dozen cases.) Although my only degree in history is my undergrad degree, I side with the historians on this. To put it another way, I’m less interested in using cases to illustrate theoretical points, and more interested in getting the history right.

Akhil has done some great historical work, so I’d love to see him more deeply engage with the vast historical literature on Lochner, rather than cite theorists like Tribe and Rubenfeld. While law professors love to cite (and to my mind, often misinterpret) cases like Lochner and Coppage, the picture necessarily becomes far more nuanced when one considers the more obscure cases of the era. On the issue of whether the pre-New Deal Court was motivated by hostility to “redistributive” legislation, consider that the Court never interfered with welfare-type legislation, widows’ pensions, inheritance taxes, and the like. The Court also generally upheld antitrust laws, which were among the most blatantly redistributive of laws, as they were seen as aiding small businesses at the expense of large corporations.

Even if one limits things to the category to labor regulations, as early as 1898, the Court made it clear that states could regulate employers to alleviate inequalities in bargaining power. In Holden v. Hardy, Justice Brown (importantly, a member of the Lochner majority), wrote for a 7-2 majority that upheld a maximum hours law for miners that “the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting.” The “proprietors lay down the rules, and the laborers are practically constrained to obey them.” In such cases, Brown wrote, “the legislature may properly interpose its authority.”

Not surprisingly, the Court consistently upheld workers’ compensation legislation, one of the more radical Progressive reforms of the days. These included laws that required employers to pay into a state workers’ compensation fund instead of simply paying for their own employees’ injuries; permitted an employee’s recovery for disfigurement with no loss in earnings ability; required employers to pay into a state workers’ compensation fund when an employee without heirs died on the job; required that compensation for a worker’s death be paid to the decedent’s relatives who were citizens of, and lived in, another country; required payment of compensation to workers injured on their way to work; and restricted the fees attorneys could charge in workers’ compensation cases. The Court also upheld the federal Jones Act and the federal Longshoremen’s and Harbor Workers’ Compensation Act.

The Court also upheld laws forbidding the employment of children below the age of sixteen in certain hazardous occupations; regulating the hours of labor of women and of men in industrial occupations when overtime work was permitted; regulating the width of entries to coal mines; requiring coal mines to maintain wash houses for their employees at the request of twenty or more workers; making mining companies liable for their willful failure to furnish a reasonably safe place for workers; requiring that coal miners’ pay be based on car loads of coal they produced; requiring railroads and mining companies to pay their employees in cash; requiring railroads to pay wages due an employee on discharge regardless of contrary contractual agreement; requiring coal produced by miners be weighed for payment purposes before it passes over a screen; giving preferences to citizens in public works employment; regulating the wages and hours of workers employed on public works projects; the payment of seamen’s wages in advance; regulating the timing of wages paid to employees in specified industries; and mandating an eight-hour day for federal workers or employees of federal contractors. The vast majority of these decisions were unanimous, and, among the exceptions, almost all of the dissenting votes came from Justices Brewer and Peckham, the only two Justices of the time who more or less consistently voted to restrain government power. Moreover, the vast majority of laws obviously geared to worker and public health and safety, including bakery regulations that accompanied the hours law at issue in Lochner, were so obviously constitutionally unobjectionable that they never resulted in constitutional challenge.

The Court did invalidate one specific category of laws that might be considered redistributive: laws that it believed had no purpose other than to aid labor unions. For example, the Court twice invalidated laws that prohibited employers from forbidding their employees to join labor unions. Not surprisingly, this raised the ire of leading Progressive lawyers of the day who strongly favored unions. (Herbert Croley, friend and publisher of Learned Hand, Louis Brandeis, and Felix Frankfurter, wrote that “nonunion industrial laborer . . . should be rejected as emphatically if not as ruthlessly as the gardener rejects the weeds in his garden for the benefit of fruit and flower-bearing plants.”)

But the conflict between Progressive jurists and the Supreme Court, then, was not over whether inequality of bargaining power could justify government regulation of labor markets, but over the appropriate remedy. The Court’s critics advocated union-led social democracy in place of a regime of general contractual freedom. A majority of Justices, by contrast, approved of ameliorative legislation directly addressing what they saw as oppressive corporate labor practices, but believed that preserving a general presumption of liberty of contract was both constitutionally required and served workers’ interests (as Justice Pitney expressly argued in Coppage v. Kansas). They further believed that labor unions were monopolistic and potentially oppressive.

One can certainly argue that it wasn’t the Court’s place to take sides in such a pressing and controversial social issue, and one in which they had little real expertise. That, in fact, was the classic Progressive critique of the Court, since adopted by modern conservatives. But modern liberals are less enamored of that critique, because it could equally apply to the Court’s involvement in abortion or gay rights. It’s far more comfortable to claim that the Court was wrong because it opposed “redistribution,” which is no longer a serious constitutional controversy, than to acknowledge that the Justices were trying to preserve liberty as they understood it, which is at the heart of modern liberal constitutionalism.

None of this is to say that Lochner itself, or other liberty of contract cases, were correctly decided. But to have an informed debate about that, I think we need to know what the Court was actually doing. And that requires an immersion in the historical literature.

[I know this is long for a quick response. If I had more time, I would have written a shorter one.]

UPDATE: I should note that Tribe later took on the argument that the liberty of contract cases, like Roe, simply reflected the Court’s contemporary understanding of liberty. He wrote that “Lochner’s downfall did not represent a denigration of economic liberties but a recognition that such liberties were not meaningfully protected by the ‘free’ market” and that “the error of [the liberty of contract cases] lay not in judicial intervention to protect ‘liberty’ but in a misguided understanding of what liberty actually required....” Laurence H. Tribe, American Constitutional Law § 15-13, 769, 1374 (2d ed. 1988).

Let me start by expressing my delight that Professor Amar is guest-blogging here at the VC. Akhil is clearly one of the great constitutional scholars of our time, and I have learned a great deal from his work over the years. It’s therefore with some trepidation that I engage in this blog dialogue with him.

On to business. First, where we agree.

(1) “While Lochner could perhaps be defended as a plausible (albeit contestable) constitutional interpretation in 1905...” I don’t take any position in the book as to the correctness of Lochner beyond implicitly arguing that it was a plausible interpretation of the Fourteenth Amendment when it was decided. By contrast, the standard account of Lochner has long been that it involved out of control reactionary Justices attempting to impose Social Darwinistic views on the American people. So I think I can put this down as general agreement.

(2) Amar also seems to agree that some of the Court’s pre-New Deal due process decisions invalidating state and local regulation, those in the non-economic “civil liberties” realm, have gotten short shrift, and he doesn’t seem to dispute that these cases were to a significant extent outgrowths (in practice if not by necessity) of Lochner and like-minded due process “economic” cases. So, I’ll call this at least basic agreement.

(2) “Bernstein fails to highlight the fact that the most admirable cases of the Lochner era, on which modern case law continues to build, were all joined in relevant part by Justice Brandeis.” In retrospect, I do somewhat regret not treating Brandeis as more of a transitional figure between the harsh anti-rights posture of Justice Holmes and modern liberal concern for civil rights and civil liberties. On the other hand, as noted in the book, Brandeis adopted his rights-protective posture as a second-best solution. In contrast to his reputation as a strong civil libertarian, Brandeis would have preferred to have abolished the Due Process and Equal Protection Clauses entirely. But I’ll conclude that we agree that I should have given Brandeis more credit for moving Progressive jurisprudence in a liberal direction than I did.

Now for where we disagree:

(1) “The 1905 Lochner case itself, in which the Court invalidated a state maximum-hour law, was but one particularly salient example of the Court’s overeagerness to invalidate progressive legislation. Nothing in the written Constitution expressly prohibited maximum-hour laws, and it is hard to make a winning argument that the Constitution implicitly did so. The Court’s root objection to such laws was that they were designed to redistribute wealth from employers to laborers.” First, while overeagerness is in the eye of the beholder, it’s worth noting that the Court upheld the vast majority of Progressive legislation challenged under the Fourteenth Amendment, including licensing laws, child labor laws, workers’ compensation laws, eugenics laws, and much more. Second, the Court did not, in fact, generally object to maximum hours laws. Indeed, the Court turned back challenges to every maximum hours law that came before it both before and after Lochner.

(2) This suggests either that there was something special about the law in Lochner that raised the Court’s ire, or that it was simply an aberration. I provide some reasons in my book why the former is more likely correct, but either way it’s a mistake to see Lochner as the typical case of the period. The two other cases singled out by Amar, Dred Scott and Plessy, were historically extremely important–Dred Scott was seen as extremely significant in its own day, and Plessy as a precedent that potentially stood in the way of Brown v. Board of Education.

Lochner, by contrast, was not singled out in the legal literature until almost thirty years after it was implicitly overruled (not being considered important enough to be mentioned by name). Opponents of Griswold v. Connecticut and especially Roe v. Wade decided to make it, for more or less random reasons discussed in the book, the poster child of judicial activism via “substantive due process.” Defenders of those decisions responded by invoking the novel concept of a “Lochner era” [a phrase no one used until 1970] in which the Court improperly used the Constitution to defend economic interests–whereas using the Court to protect true “fundamental rights,” they argued is perfectly legitimate. Amar has brilliantly undermined standard mythology in so many areas of constitutional law, so I’m a bit disappointed that he has embraced the “Lochner era” and the “Lochner Court” shorthands that grossly and anachronistically attribute importance to Lochner that if never had during the relevant time period.

Holden v. Hardy, which upheld a maximum hours law for miners, is a much better exemplar of the Court’s actual due process jurisprudence before the New Deal, and Adair v. United States (invalidating a law banning employers from prohibiting their employees from joining unions) and Adkins v. Children’s Hospital (invalidating a minimum wage law) were much more controversial in their own day. However, Adair was a bad candidate for liberal obloquy because it was written by the sainted (after Brown) Justice Harlan, who explicitly endorsed the right to liberty of contract. This explains how I can claim him for my “team,” as Amar put it, and why I don’t see him as a “trenchant critic” of Lochner, but rather someone who simply disagreed with his brethren on how stringently to apply the right in the particular case. Adkins , meanwhile, was a bad candidate because the majority expressed great sensitivity to the fact that minimum wage laws for women only could easily operate to the latter’s disadvantage, while the dissenters operated under assumptions that would were widely conceived of as sexist by the 1970s.

(3) Finally, and most important, I disagree with Amar that the underlying motivation of the Court in Lochner and its pre-New Deal progreny was hostility to redistribution. I was aware before I wrote my book that Professor Amar had adopted this theory in previous work. His citation was to a famous, well-cited article by Cass Sunstein, Lochner’s Legacy. Here’s what I wrote about this theory in my book:

Sunstein argued that ... the Court sought to preserve what it saw as the “natural,” “status quo” distribution of wealth against redistributive regulations... Sunstein’s work quickly came to dominate legal scholars’ understanding of Lochner, but constitutional historians have properly dismissed Sunstein’s work on Lochner as ahistorical. (citing to G. Edward White, The Constitution and the New Deal 24-25(2000))

Admittedly, that’s rather thin gruel for rebutting a thesis that has been widely accepted among legal academics. But while Sunstein’s article is a fabulous work of legal theory, it’s not a serious historical work, and I didn’t see any reason to address it in detail in a book aiming to provide a sound historical account of Lochner.

I did, however, address the historical validity of Sunstein’s thesis in detail in my 2003 Texas Law Review article, Lochner’s Legacy’s Legacy. Sunstein graciously responded that “Bernstein examines the Court’s performance with far more care than I did; he greatly illuminates the era, and he offers reasons to question my basic claims.” Cass R. Sunstein, “Lochnering,” 82 Tex. L. Rev. 65, 65 (2003).

Of course, Amar can believe completely independently of Sunstein that the Court in Lochner and like-minded case was motivated primarily by concern over redistribution. Interested readers can take a look at my Texas article and decide whether I’ve made at least a presumptive case to the contrary. They can also see whether the argument I make in my book, that the Court’s jurisprudence was an outgrowth of longstanding natural rights ideology combined, secondarily, with a suspicion of “class legislation” (which is not the same as redistributive legislation) is more persuasive. I should add that my position isn’t set in stone, and is subject to revision based on future scholarship–I’ve already changed my views from adopting Howard Gillman’s class legislation thesis to staking out a natural rights explanation to allowing some room within my thesis for judicial concerns over class legislation, under the influence of Barry Cushman.

I therefore hope that Professor Amar will choose in the future to using his prodigious talents to further join the debate over the origins of Lochner and like-minded cases. A good way to provoke a dialogue on this, I think, is with the following question: If underlying motivation of Lochner and like-minded cases was redistribution, (1) how do we explain the Court’s invocation of Lochner [and other liberty of contract precedents] in cases like Meyer v. Nebraska and Pierce v. Society of Sisters and other contexts involving what we now call civil liberties, with no “distribution” angle in sight? and (2) how do we explain that many cases, documented in my Texas article, in which the Supreme Court upheld blatantly redistributivist legislation, often unanimously?

Dale’s post below on Robert Delahunty’s claim that the end of slavery came at the cost of slaveholders’ freedom, and that likewise legally recognized same-sex marriage would come at the expense of the freedom of those who want to live in a society without such things, reminds me of the great Progressive legal and economic thinker, Robert Hale.

Hale was as responsible as anyone for putting the finals nails in the coffin of the American natural rights constitutional paradigm in favor of a “living constitution” and legal realism. In opposing any notion of “liberty of contract” in his famous article “Coercion and Distribution in a Supposedly Non Coercive State”, Hale claimed that trying to protect “liberty” under the constitution is meaningless because there is a fixed amount of liberty (or coercion) in any society, so giving one person “liberty” means “coercing” someone else who opposes the recognition of that liberty.

Hale was writing in the economic context, but as Professors Ian Ayres and Barry Cushman have pointed out, this can easily be applied in other contexts as well. Cushman puts it this way, re Meyer v. Nebraska, which was decided the same year that Hale’s article came out: “one might characterize a law prohibiting the teaching of German in elementary school as depriving A of the liberty to study German in school, while simultaneously endowing B with the liberty to study in a German-free school zone.”

From Hale it’s a short leap to Herbert Weschsler’s (Wechsler was a Progressive law student at Columbia in Hale’s heyday) infamous claim in the late 1950s that he could find no “neutral principle” that would lead him to conclude that public school segregation was unconstitutional:

But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. Is this not the heart of the issue involved, a conflict in human claims of high dimension, not unlike many others that involve the highest freedoms – conflicts that Professor Sutherland has recently described. Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? I should like to think there is, but I confess that I have not yet written the opinion.

So Delahunty’s argument has a long provenance; through the late 1950s it was prevalent on the legal left, as reflected in Wechsler’s article, but the next generation of liberals rejected such views on favor of the so-called “rights revolution.” Hale’s rights-skepticism now more often finds its home with right-wing rights-skeptics like Bork, Scalia (although his skepticism is somewhat fainthearted) and (apparently) Delahunty. But because he was a vigorous opponent of economic liberty, Hale is still celebrated by many on the left.

UPDATE: It’s also worth noting the commonalities between the arguments of Delahunty, Wechsler, and Howard Lee McBain, a Progressive professor and author of The Living Constitution (1927). In that book, McBain reacted to the Supreme Court’s refusal to countenance residential segregation ordinances by accusing the Court of destroying whites’ right to live in a segregated neighborhood.

The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici.  The brief tries to exploit a weakness in conservative Justices’ affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the Fourteenth Amendment would allow for race-based legislation meant to advantage African Americans.  The brief therefore concentrates on showing that the same Congress that enacted the Fourteenth Amendment passed several race-conscious measures intended to aid African Americans, that these measures were denounced by opponents as class legislation, and that the same Congress rejected versions of the Fourteenth Amendment that would have explicitly banned race-conscious legislation.

I have neither the time nor inclination to check the brief’s citations.  So let’s assume that not just the brief’s facts but also the interpretation of those facts (e.g., in terms of which laws count as race-conscious) are accurate.  It nevertheless strikes me as only marginally helpful, at best, for at least two reasons.

First, unless I somehow missed it, every piece of race-conscious Reconstruction-era legislation mentioned in the brief is federal legislation.  None of the legislation in question grants authority to states to engage in race-conscious legislation.  In Fisher the underlying issue is whether a state university may engage in race-conscious admissions.  The authors not only don’t defend, but don’t even raise, the claim that the Reconstruction Congress thought that the same standards of race-neutrality should apply to the federal as to state and local governments.

And indeed, we know that Congress didn’t think that, because it passed a Fourteenth Amendment that applied only to the states, and did not deign to apply any sort of new equal protection standard to the federal government, which in turn was not covered by any explicit equal protection guarantee of the sort contained in the Fourteenth Amendment.  So I think the brief makes a  provocative case that perhaps the federal government should be subject to more lenient standards of race neutrality than the states, an argument that the Supreme Court itself has adopted at times, but abandoned in the Adarand case.  And while it’s true that the Court now holds that all levels of government are subject to the same equal protection standard, the black letter law is that the federal government is subject to the Fourteenth Amendment’s standards, and not the states to whatever standard the federal government should theoretically be held too.

Second, it strikes me that if I were to find the brief persuasive on the Fourteenth Amendment issue, it would only persuade me that all levels of government may at times engage in race-conscious legislation on behalf of African Americans.  But in a state like Texas, with a much larger Hispanic population than black population, the primary beneficiaries of affirmative action preferences are Hispanics.  The authors provide no evidence that the Framers would have allowed race-conscious preferences for groups other than blacks (and indeed, I believe that Mexican-Americans, the primary Hispanic group in Texas, were (a) in any event considered “white” under federal law and that (b) they were nevertheless subject to federal discrimination, not federal favoritism, at the time the Fourteenth Amendment was being enacted).

More generally, most “minorities” in the United States are not African Americans, with Hispanics outnumbering blacks, plus an additional six percent Asian Americans (who don’t usually benefit from admissions preferences–quite the opposite–but who are eligible for many other affirmative action programs), plus another several million Native Americans.  Even among African Americans, a significant percentage of the beneficiaries of affirmative action programs, especially on university campuses, are blacks who were never subject to American slavery because they or their ancestors immigrated from Africa or the Caribbean long after the Civil War.

So the CAC brief may provide originalist evidence that the U.S. government should be given more leeway in regard to race-conscious policies than the states get, and, more generously, may provide originalist evidence that even the states may engage in race-conscious programs that benefit the descendants of American slaves.  But I’m not persuaded that it’s at all helpful in showing that states may willy-nilly benefit any ethnic group it chooses at the expense of any other ethnic group, as, for example, University of Texas does in preferring Hispanic applicants (who are deemed “underrepresented”) and disfavoring Asian-Americans (who are deemed “overrepresented”).

UPDATE:  It’s also worth noting that many Hispanics are solely or primarily of European heritage, and about 50% identify themselves as “white” on census bureau forms. UT’s approach, in common with how preferences work in general,  is that a state university can and should favor white descendants of Spanish conquistadors or Italian immigrants to Argentina or Jewish Mexicans of Eastern European descent, solely because the former have Spanish-speaking ancestors.  (Indeed, the “diversity” rationale for affirmative action seems to demand such a policy. In Grutter, the district court found that Michigan L aw School gave preferences only Mexican American and mainland Puerto Ricans, but Michigan vigorously denied this, assumedly because it conflicted with the diversity rationale and suggested an illicit social justice rationale for its policies. Grutter’s attorneys didn’t pursue this point.)  So for the brief to be persuasive in defending UT’s policies, it seems to me it would need to persuade readers that the fact that the the Reconstruction Congress allowed for race-conscious federal legislation benefiting slaves and descendants of slaves somehow means that the same Congress would have endorsed state preferences based on linguistic heritage, regardless of race and regardless of whether the individuals received the preference or their ancestors had even been subject to de jure discrimination in the United States. That seem like quite a stretch.

Damon Root of Reason has an interesting article giving his list of the “Top Ten Libertarian Supreme Court Decisions”:

It’s no secret the U.S. Supreme Court has often been a disappointment to libertarians....

But that doesn’t mean the High Court always gets it wrong. Here, in no particular order, are 10 Supreme Court decisions still standing where the Court put individual liberty and limited government first.

In this 2009 post, I outlined some criteria for ranking the best-ever Supreme Court decisions and made a few nominations of my own:

As I see it, the cases on the list should 1) uphold important principles, and 2) actually have had a substantial real-world impact by preventing large-scale injustices. They should also, of course, be legally correct. Criterion No. 1 rules out a large number of Supreme Court decisions that protect only relatively minor freedoms (for instance those limiting minor instances of government endorsement of religion). Criterion No. 2 rules out many cases where the Court struck down liberty-infringing laws that were already on their way out and rarely enforced. For example, Lawrence v. Texas invalidated anti-sodomy laws, a truly barbaric form of legislation that egregiously violated the liberty of gays (and occasionally a few heterosexuals). But by 2003, when Lawrence was decided, only a few states still had anti-sodomy laws and even they almost never enforced them. For this reason, Lawrence had only a modest real-world impact....

Given my criteria, the Peonage Cases of the early 1900s surely rank high, as they enabled numerous southern blacks to escape a system of forced labor and did so at a time when Jim Crow racism was at its height, and the political branches of government showed little willingness to protect black rights. Also worthy is Buchanan v. Warley (1917), which struck down racially based zoning, and helped prevent US state-imposed segregation from becoming as bad as that in South Africa under the Group Areas Act. Although it did not lead to much actual racial integration, Buchanan enabled blacks to move into many areas that would otherwise have been closed to them....

I also agree with Brad [Smith's] nomination of Schechter Poultry v. United States (1935), which invalidated the National Industrial Recovery Act, the most sweeping effort at economic central planning in all of American history. Enacted in 1933, the NRA cartelized nearly the entire nonagricultural economy; by raising prices and wages above market-clearing levels, it also increased unemployment and lowered industrial production at a time when both were already reeling from the Great Depression... Unlike most other 1930s decisions striking down New Deal laws, Schechter was never directly overruled. And the NRA was never reenacted, though the New Deal-era Congress did go on to pass a number of ill-conceived laws cartelizing individual sectors of the economy.

Co-blogger David Bernstein and I discussed the major real-world effects of Buchanan and the Peonage Cases in more detail in this article.

Schechter and Buchanan are on Damon’s list too. Several of the other cases he picked fall short on my Criterion 2. Lawrence v. Texas (discussed above) is one example. The recent Second Amendment decisions – Heller and McDonald - are likely to have only a modest impact because they will probably end up eliminating only very extreme forms of gun regulation that only a few jurisdictions have enacted. That’s still praiseworthy. But it’s not enough to crack the top ten all-time list.

Whether you agree with my particular picks or not, the more important point is that we need to be more rigorous and systematic in our comparative evaluations of Supreme Court decisions.

UPDATE: Paul Horwitz has a lengthy post at Prawfsblawg considering the question of whether the last sentence of this post was directed only at libertarians or at everyone who ranks Supreme Court decisions:

Does “we” mean libertarians, or everyone? Does he mean that we need to be more rigorous and systematic in the comparative evaluation of Supreme Court decisions in general? Or that we need to be more rigorous and systematic when constructing “top ten” lists of this kind? Or just that libertarians in particular need to be more rigorous and systematic when constructing their own top ten lists?

Let me set Paul’s mind at ease. “We” does indeed mean everyone, not just libertarians. When expert commentators rank Supreme Court cases, they should try to be more rigorous, whether they are libertarian or not. But this general point especially applies to libertarians, because most of the admittedly few libertarian “top ten” lists out there are not as rigorous as they should be on some key points. I have not done anything approaching a comprehensive survey of similar lists by non-libertarian experts. So it’s possible the latter are on average more rigorous than the libertarian lists out there.

Paul also claims that we should focus more on which decisions are most “influential” than on which decisions are “best.” As I see it, both inquiries are useful. We should indeed try to analyze which decisions are influential, regardless of whether their influence is positive or negative. But normative evaluation of Supreme Court decisions is also valuable.

Finally, I am happy to learn from Paul’s post that “libertarianism ... has certainly captured the allegiance of an ever-larger percentage of the students in my con-law classes at schools across the country.”

Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.

There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.

Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.

For at least 30 years, many conservative scholars and jurists have also been urging strong judicial enforcement of constitutional property rights. Rehnquist was a leader on that issue too, notably in his dissent in the key 1978 Penn Central case, which established the modern – largely pro-government – standard for regulatory takings cases.

These longstanding attitudes were sometimes obscured by loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of that rhetoric. But most conservatives used the term “activism” to denounce decisions that they saw as departing from originalism, not simply ones striking down laws.

There is greater consistency than meets the eye on the liberal side too. While liberals have long favored aggressive judicial review on issues like privacy rights and defendants’ rights, they have for decades opposed nearly all judicial enforcement of structural limits on federal power, and most judicial protection for property rights and economic liberties. For nearly a century, the dominant left-wing view has been that such issues must be left to the political process. I think the latter attitude is misguided. But it’s hardly new.

In sum, the main disagreement between liberals and conservatives is not about whether judicial review in general should be deferential to the political process, but rather on what kinds of legislation should be treated deferentially and what kinds should not. There is also, of course, an important longstanding debate over methodology: whether the courts should rely on originalist methodology in deciding which laws to strike down, or whether they should give greater weight to various “living constitution” theories.

I don’t fully subscribe to either the conservative or liberal approaches to judicial review. And I don’t think either has been anything close to fully consistent over time. That’s especially true if you shift the focus away from scholars and judges to politicians and parties, which are more likely to be influenced by short-term political calculations. But both have been a lot less inconsistent than some commentators like to suggest.

The struggle over the individual mandate was not some strange role reversal. It was a continuation of a longstanding battle over the issue of judicial enforcement of federalism.

UPDATE: I should mention that I am still abroad, and therefore may not be able to respond to any responses this post may generate for some time. I took advantage of a short break in my travel schedule to write this post and my previous one.

UPDATE #2: Co-blogger David Bernstein reminds me of Rehnquist’s notable 1981 concurring opinion in Hodel v. Virginia Surface Mining, where he criticized the Supreme Court’s Commerce Clause jurisprudence for giving Congress too much power.

UPDATE #3: Alicea responds to this post here:

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows....

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. Robert Bork undoubtedly adhered to the Justice Harlan conception of restraint, and I think it is fair to say that his jurisprudential views were emblematic of the movement until the early- to mid-1980s. Somin focuses on Rehnquist’s views, but my argument was much broader and does not rise or fall with how the Rehnquist of the 1970s is categorized.

Thus, I think that in arguing that my case is overstated, Somin overstates my case. He ascribes positions to me that I did not express in the article. To take another example, I did not say that the healthcare decision “represents a sea change in conservative attitudes to judicial review.” In fact, I argued quite the opposite: that the change in legal conservatives’ conception of judicial restraint has been going on since at least the 1990s. The healthcare decision simply highlights how far legal conservatives have moved away from the old, Justice Harlan conception of restraint, with its emphasis on deference to current majorities and modest view of the judicial role...

I end by noting that neither Somin nor [Ed] Whelan disagreed with a key argument in the article: that there are two different views of judicial restraint within the conservative legal movement.

With regard to Rehnquist, as I explain in my original post, he argued for strong judicial review on federalism and property rights issues long before the 1990s, and indeed going all the way back to the 1970s. in the 1976 article that Alicea cites, Rehnquist criticized not strong judicial review as such, but judicial review based on “living constitution” theories. He did not object to aggressive judicial review in cases where the legislature adopts laws that are unconstitutional from an originalist point of view.It is also important to emphasize, as I briefly note above, that Rehnquist was not alone in holding those views. Several other conservative justices of the era expressed similar views on federalism, notably Sandra Day O’Connor. Robert Bork did indeed express a more deferential approach to judicial review. But even he suggested in his writings of the 1980s and early 1990s that much of the post-New Deal federalism jurisprudence was questionable. Other prominent conservative jurists made similar statements. Thus, Alicea is wrong to trace the change in conservative perspectives on these issues only back to the 1990s. In reality, it dates back at least to the early to mid-1970s.

I should add that when I said that, on Alicea’s theory, “the individual mandate case represents a sea change in conservative attitudes to judicial review,” I did not mean to suggest that he thinks the sea change occurred only as a result of this case, but rather that the conservative reaction to the mandate is part of a relatively recent change in attitude. I apologize for any confusion on this point. However, I think we do differ in so far as he portrays the change as a relatively recent development, whereas in my view it had deep roots going back several decades.

Finally, I agree that there are at least two views of the judicial role among conservatives. Indeed, there are probably many more than just two. My point, however, is that many prominent conservatives have been arguing for strong judicial review on federalism and property rights issues for a long time now. Neither the 1990s nor the individual mandate case represented a sea change in that respect.

In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.”

Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

The above language is a plausible argument for the Chief Justice’s tax/penalty analysis. But by discussing a window tax, the Roberts opinion provides one more reminder why the individual mandate, if it is a tax, is a direct tax, not an indirect tax. Direct taxes must be apportioned by state population. Art. I, sect. 9, cl. 4. If the individual mandate is a direct tax, then it is unconstitutional, because it is not apportioned by state population.

Pursuant to the 16th Amendment, direct taxes on income need not be apportioned, but neither the individual mandate nor the hypothetical window tax are taxes on income. Constitutionally, “income” subject to the federal income tax must be  ”undeniable accessions to wealth.” Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). A decision not to buy overpriced insurance from Congress’s Big Insurance pets, like the decision not to buy a particular type of window, is not an “accession to wealth.” The decision provides no additional income to the person.

So let’s accept Chief Justice Roberts’ theory that a window tax and the individual mandate are analytically comparable. On July 9, 1798, Congress enacted a direct tax statute, to pay for national defense preparations against France. “An Act to provide for the valuation of lands and dwelling-houses, and the enumeration of slaves, within the United States. On July 14, Congress passed the “Direct Tax Act,” to provide for collection of the July 9 taxes. Pursuant to the Direct Tax Act, federal assessors were to examine houses to assess them for purposes of the direct tax. In addition, the Direct Tax Act ordered the assessors make records of the number and sizes of windows in each house. The window data were to be gathered so that Congress could, in the future, decide to impose a direct tax on windows. Paul Douglas Newman, Fries’s Rebellion: The Enduring Struggle for the American Revolution 76-77 (2004).

It seems there was no dispute that a window tax was a direct tax. A fortiori, a tax on not having certain types of windows would be also be a direct tax. This is one more piece of evidence that Chief Justice Roberts was wrong in stating that the individual mandate “tax” is not a direct tax. Much more extensive discussion of the direct/indirect tax issue (but not of window taxes) can be found in Rob Natelson’s 27 minute podcast on the subject, for iVoices.org.

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

Absolutely not. Rob Natelson explains why in this 27 minute podcast from iVoices.org.

My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that a conditional congressional grant violates the rule.

The folks who think that the “evolving Constitution” completed its evolution in 1937-42, and that everything the Court did during those years must be applied today with the broadest possible reading, should be especially pleased with the NFIB Court’s vigorous enforcement of a very important New Deal precedent.

My essay argues that the application of the non-coercion rule, as well as the  application of the doctrine of incidental powers for the Necessary and Proper Clause, are among the many elements of the Roberts opinion whose significance approaches that of some of the most important opinions by Chief Justice Marshall.

Although we do not know Chief Justice Roberts’ motives, I suggestion a comparison of NFIB to Marbury v. Madison: adroitly escaping from a partisan assault on the Court itself, the opinion moves constitutional law very far in the opposite of the direction favored by partisan assaulters–and does so in a way that leaves the partisan assaulters unable to use the case in their attacks on the Court.

Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on iVoices.org. As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from whether it is “necessary.” And CJ Roberts’ opinion is the first in Supreme Court history to find that a law which is “necessary” is not proper. Ilya’s amicus brief was the key brief on the necessity of making separate inquiries into “necessary” and “proper.”

That’s not the only way in which the Roberts opinion brings interpretation of the Necessary and Proper Clause back to the proper, originalist understanding which was explicated in McCulloch. The Roberts opinion explains that the NP Clause grants Congress no additional powers; the clause merely expresses the default legal rule that when an enumerated power is granted, the grant also includes lesser powers which are “incidental” to the enumerated power. In McCulloch, Chief Justice Marshall found it necessary to spend many pages applying the doctrine of incidental powers before he could reach the other issues about the constitutionality of the Second Bank of the United States.

The Roberts opinion is one of many, many post-McCulloch opinions to utilize the doctrine of incidental powers, but it is the first opinion to hold that a particular law is not valid because it is not an incident of an enumerated power. The originalist, Marshallian understanding of the doctrine of incidental powers was the subject of the amicus brief which Rob Natelson, Gary Lawson, and I wrote. The brief is based on the book The Origins of the Necessary and Proper Clause, published by Cambridge University in 2010, and co-authored by Natelson, Lawson, Geoffrey P. Miller and Guy I. Seidman.

The brief devotes much attention to the newspaper essays which John Marshall wrote defending the McCulloch decision. These essays were collected in the book John Marshall’s Defense of McCulloch v. Maryland, published in 1969 and edited by Gerald Gunther. The Roberts opinion is the first in Supreme Court history to cite this book, and the first to cite Marshall’s essays.

The Roberts opinion joins McCulloch v. Maryland as an essential case in any law school textbook that covers the Necessary and Proper Clause. While the Roberts opinion on the Commerce Clause and the Spending Clause brings current interpretation of those clauses closer to the original understanding, current interpretation remains a long way from original meaning. For the Necessary and Proper Clause, however, the Roberts opinion goes all the way.  As of yesterday, Supreme Court doctrine about the Necessary and Proper Clause has fully returned to 1791/1819. The originalist victory is complete.

For some background on the doctrine of incidental powers, one starting point is the Lawson/Kopel article Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011). A follow-up article, Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), replies to Andrew Koppelman’s warning that following McCulloch‘s originalist doctrine will cause national catastrophe. It looks like we’ll find out if he’s right. If you’re assuming that he is, and thus time is short before The End, a condensed version of our Yale article is available on Legal Workshop.

With regard to Jonathan’s post on Justice Scalia’s harsh words for Wickard, I’m not really surprised. Back in 1992, I surveyed the (admittedly relatively limited) literature on the commerce clause from conservative and libertarian scholars and concluded:

There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the New Deal era resulted from mistaken Supreme Court decisions. When it comes to what can be done about it, however, there is less unanimity. One school of thought, represented by former Judge Robert Bork and Judge Ralph Winter of the U.S. Court of Appeals for the Second Court, argues that it is toolate to rely on the judiciary to reverse the centralizing trend of modern government. Winter claims that the unraveling of the modern Leviathan must be done through the political process, because it would be too disruptive to society andto the economy for judges to strike down federal programs wholesale. And, because judges must act on principle, they cannot pick and choose which laws to declare unconstitutional.... Richard Epstein argues that, at least on the margins, the Supreme Court canstill restrain national economic regulation. He thinks “that it is possible to make incremental changes by principled adjudication.”

The consensus noted above is something that many liberal ACA defenders don’t seem to recognize: many conservatives, including conservative Supreme Court Justices, have long accepted the Court’s broad post-New Deal commerce clause jurisprudence, but NOT because they think those decisions were correct. If the ACA involves, as lower court judges seem to agree, a novel expansion of federal power–even one that seems to naturally follow from past exercises of such power–it’s not the least bit surprising that many conservatives will balk, as the case represents a rare case where the Winter and Epstein positions described above need not conflict in practice.