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Really:
In his post below, my co-blogger Randy channels Seth Myers and asks if those who follow the Supreme Court closely think that the Court would actually uphold hypothetical legislation requiring a person to have health care coverage:
[I]n the absence of any clear super precedent, are my more realist colleagues absolutely confident that the four more "conservative" justices--and maybe even Justice Kennedy who cares something about liberty when it does not involve drugs--won't see some "principled" difference between a federal prohibition against growing something both fungible and intoxicating and a universal federal mandate to buy a service from a private company? Really? Really??
   I can't speak or everyone, of course, but I am personally confident that the current Supreme Court would not strike down such legislation. The Supreme Court's federalism decisions in the last 15 years have followed a relatively predictable trend, and such a ruling would be dramatically out of step with that trend. As I wrote over at SCOTUSblog on the day Gonzales v. Raich was handed down in 2005:
I don't think this opinion should come as a surprise. When was the last time that the pro-federalism side won in a major federalism case at the Supreme Court? As best I can recall, it's been a long time; in the last few years, at least since Bush v. Gore, pro-federalism arguments have repeatedly lost.

More broadly, it seems to me that the theme of the Rehnquist Court's federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn't have a lot of practical importance, there's a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.

As soon as the issue takes on practical importance, however, the votes generally aren't there. If anything, the surprise today was that there were three votes for the pro-federalism side.
  I would think the personnel changes at the Court since I wrote that post would make this more true rather than less.
yankee (mail):
More broadly, it seems to me that the theme of the Rehnquist Court's federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn't have a lot of practical importance, there's a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that

I agree that Lopez was mostly symbolic, but did Morrison really not have much practical importance? To this day there is no federal remedy for gender-motivated violence, of which there is quite a bit.
9.21.2009 11:09am
Teller:

Congress could quickly reenact the statute with a very slight change


Just like all you need to do is make a slight change to Barnett's hypothical: Either be fined taxed or buy insurance.
9.21.2009 11:17am
ruuffles (mail) (www):

I would think the personnel changes at the Court since I wrote that post would make this more true rather than less.

Just out of curiosity, was there anyone on Bush's short list this wouldn't be true for?
9.21.2009 11:22am
Ari Indik (mail):
I think comments on Professor Barnett's post are off, so I'll ask a question here. He says in his Politico piece:

The "spending power"? There is no such enumerated power. There is only the enumerated power to tax. Laws spending tax revenues are authorized, again, if they are "necessary and proper for carrying into execution *the foregoing powers*." So we return to the previous issue: what enumerated end or object is Congress spending money to accomplish?

Isn't the power to "provide for the common defense and general welfare" generally considered the "spending power"?
9.21.2009 11:43am
ckirksey (mail):
I agree with Teller and have suggested this before on VC. Congress can certainly modify the tax code to add a surtax and then add a tax credit based on obtaining health insurance. Mandate no but certainly an inducement.
9.21.2009 11:45am
Teller:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States

Art1 Section 8
9.21.2009 11:48am
Steve:
I find this debate interesting. Randy is saying, "Because this case is much bigger, who knows what the Court might do." Orin is saying, "Because this case is big, we know exactly what the Court will do!"
9.21.2009 11:52am
ShelbyC:
I wonder when we'll get some folks that understand the difference between the power to regulate interstate commerce, and the power to regulate anything that affects interstate commerce.

Sigh.
9.21.2009 11:55am
NaG (mail):
Personally, I was disappointed in Prof. Barnett's post. It struck me as being more emotionally-driven than logically compelling.
9.21.2009 12:07pm
Arkady:
As an aside, I find it somewhat amusing that conservatives (and no doubt libertarians) who strongly advocate that folks be allowed to purchase health insurance across state lines haven't twigged to the possibility that this could well set the predicate for the kind of Commerce-Clause sanctioned personal mandate they claim to abhor.
9.21.2009 12:29pm
ShelbyC:

As an aside, I find it somewhat amusing that conservatives (and no doubt libertarians) who strongly advocate that folks be allowed to purchase health insurance across state lines haven't twigged to the possibility that this could well set the predicate for the kind of Commerce-Clause sanctioned personal mandate they claim to abhor.


Well, since allowing interstate insurance purchases wouldn't change the fact that mandates are probably constitutional under current commerce clause doctrine, nor would it change the fact that they would probably be unconstitutional under what conservatives/libs would consider "correct" doctrine, I'm not sure what folks should "twig" to.
9.21.2009 12:39pm
Nunzio:
Under Prof. Barnett's interpretation of the Constitution, which may well be the best interpretation, both Social Security and Medicare, at least as applied to non-federal employees, is unconstitutional.
9.21.2009 12:50pm
byomtov (mail):
I agree with Teller at 11:17.

The distinction between a fine for not doing something and favorable tax treatment for doing it is a distinction without a difference.

Taxes can certainly be used as an inducement. In fact, it's hard for a tax not to be some sort of inducement.
9.21.2009 1:20pm
Blargh:
Is there really no difference? Consider: A) "If you do X, we'll give you $100" vs. B) "If you don't do X, we'll take $100 from you".

If X is more expensive than $100, and you're too poor to do X, B really screws you. Or am I missing something?
9.21.2009 1:32pm
ShelbyC:

A) "If you do X, we'll give you $100"


Where does this come from?
9.21.2009 1:34pm
Blargh:
that's my interpretation of the part of Byomtov's comment re: favorable tax treatment.
9.21.2009 1:36pm
Abdul Abulbul Amir (mail):
The Bacus bill is repulsive. It has three components.

Compoment 1. Raise the cost of health care. The tax on medical devices is but one examole.

Compoment 2. Require you to buy (soon to be higher cost) insurance wether you need it or not.

Component 3. Call it "reform."
9.21.2009 1:36pm
ShelbyC:

that's my interpretation of the part of Byomtov's comment re: favorable tax treatment.


Not sure I understand. Doesn't "favorable tax treatment" mean "take less" not "give more"?
9.21.2009 1:38pm
Blargh:
Yes, exactly. My point is that taking less as an incentive to do X (here, purchasing health insurance) is not the same as taking more if you don't do it, IF doing X is more expensive than what's being taken. I think.
9.21.2009 1:40pm
Blargh:
Okay so if health insurance costs at least $120 and you were going to pay $500 in taxes, and you have $120 in disposable income after taxes, but the gov't will take only $400 if you get health insurance, then overall you're out $520 instead of $620 w/no incentive.

But if it's a penalty instead, and you can't afford $120 after paying your $500 taxes - say you only have $50 left over after taxes - then you're going to be fined for $100, which puts you $50 in the red. Right? So under certain circumstances a tax incentive isn't the same as a fine/penalty, is all I'm saying.
9.21.2009 1:48pm
byomtov (mail):
If X is more expensive than $100, and you're too poor to do X, B really screws you. Or am I missing something?

No more than A screws you. You're out $100 either way.

Consider IRA's and other private retirement plans. If you put money into one you get a tax benefit, but if you're too poor you don't get the benefit, so you pay more tax than you would have otherwise. Would you call that a fine for not having an IRA?

I suppose you could argue that losses reduce utility more than equivalent gains increase it, especially for poor people (but remember the proposed plans have subsidies). But I don't see where that comes into play in any sort of debate on constitutionality.
9.21.2009 1:55pm
Blargh:
Me neither, just I was just thinking about your comment and that struck me.
9.21.2009 1:57pm
byomtov (mail):
Blargh,

Insurance costs $120.

Scheme 1: You would owe $500 in taxes, but get $100 off for buying insurance. So you're out $520 total if you buy. If you don't buy you're out $500, but have no insurance.

Scheme 2: You would owe $400 in taxes, but have to pay a fine of $100 if you don't buy insurance. If you buy, you're out $520, as before. If you don't buy you're out $500 with no insurance as before.

The trouble with your 1:48 comment is that you are penalizing the non-buyer twice - by not reducing taxes and with a fine, while you reward the buyer only once - with a tax reduction.
9.21.2009 2:03pm
Blargh:
Why would the baseline tax liability be different under the two schemes?
9.21.2009 2:11pm
Bleh:

Why would the baseline tax liability be different under the two schemes?


Because in order to make the "incentive" a tax rather than a penalty, Congress would have to enact an additional tax--which would be eliminated if you actually bought insurance (thus increasing the baseline tax liability in scheme 1).
9.21.2009 2:17pm
Blargh:
What I mean is I'm starting with the assumption that the buyer and non-buyer have the same tax liability, though one has less after-tax income. You're building a tax reduction into the "fine scheme" which is great, but I don't see how that makes my comment problematic; we just have different prior assumptions. Unless I'm wrong of course...
9.21.2009 2:17pm
Blargh:
Okay, I get it now - ignore my 2:17 comment.
9.21.2009 2:18pm
Anthony A (mail):
So far as I understand HR 3200, there isn't actually a mandate to buy health insurance, there's only a tax penalty for not doing so. And, the penalty is a percentage of income. So, just as with Social Security, if you have no income, you don't have to pay anything.

If the tax penalty ever became non-zero at zero income, then it would probably be an unconstitutional poll tax.
9.21.2009 2:20pm
Anderson (mail):
Barnett: mandating that every man, woman and child buy a service from a private company

Well, let's think about this.

(1) Congress can mandate that I pay income tax.

(2) Congress can mandate that the tax collected can be paid to a private company (for jet fuel or whatever).

So, why can't Congress mandate that I pay premiums to a private company?
9.21.2009 2:21pm
Justin (mail):
Nunzio sort of explains why I think Barnett is reaching (to put it mildly). For Randy's view to obtain, you'd have to have a reading of constitutional authority that would invalidate wildly popular programs. The result would either be a quick constitutional amendment, or more radically, a new constitution, that would grant the federal government the necessary authority (and perhaps additional authority it does not have under current interpretations of the Constitution).
9.21.2009 2:32pm
Anderson (mail):
The result would either be a quick constitutional amendment, or more radically, a new constitution

Shudder. The first-ever Constitutional convention covered by FoxNews.

... But I think that's right, and I think that Barnett's objection is simply to the kind of country we've chosen to have.

One big reason why we have a relatively old Constitution is that we have been flexible in its interpretation. We diverged from our British forerunners in having a written Constitution, but not in a common-law-interpretive approach to that Constitution.

It's rather like American attitudes to the Bible: most people like the Bible, and would be upset if you suggested ignoring or repudiating it; but they are quite happy to interpret (one might say, "interpret away" its more incoherent or inconvenient provisions.

(As Bierce implicitly noted in defining "Christian" as "One who follows the teachings of Christ in so far as they are not inconsistent with a life of sin.")

Barnett is on the side of the fundamentalists in this, and however academically and philosophically correct he may be, it will not much trouble those Americans -- most of us -- who are content to let men and women in black robes decide what their secular Scripture means in practice.
9.21.2009 2:46pm
Joseph Slater (mail):
This is a hobbyhorse of mine, but consistent with what Justin and Anderson said, I think some law profs believe to much too great of an extent that if only the Supreme Court would adopt the correct/my preferred interpretation of the Consitution, then huge political changes would happen. Back in the 1970s-80s, I remember some on the left arguing that the Constitution mandated some form of socialism/social-democracy; today some on the right argue that the Constitution prevents the New Deal and most other social/economic programs of the past 70 years.

As if getting that fourth and fifth vote on the Supreme Court could really, effectively, invalidate how the vast majority want their country/economy/government programs organized.
9.21.2009 3:01pm
ShelbyC:

Barnett is on the side of the fundamentalists in this, and however academically and philosophically correct he may be, it will not much trouble those Americans -- most of us -- who are content to let men and women in black robes decide what their secular Scripture means in practice.


If what you're saying is true, why not let the political branches simply ignore what the black robed folks decide?
9.21.2009 3:07pm
geokstr (mail):

Anderson:
...let men and women in black robes decide what their secular Scripture means in practice.

Thank you, for being one of the few willing to admit that secularism is just as much a religion as any other ism, just without the encumbrance of a transcendental being to answer to.
9.21.2009 3:07pm
Anderson (mail):
I think some law profs believe to much too great of an extent that if only the Supreme Court would adopt the correct/my preferred interpretation of the Consitution, then huge political changes would happen

What makes this funnier to me is the comparison with the right-wing stereotype of the Ivory Tower academic who produces reams of egghead theories about how the world *ought* to work, but whose actual interference w/ same produces, at best, the Manifold Failures of the New Deal/Great Society, and at worst, Stalinism, the Cultural Revolution, and the Khmer Rouge.
9.21.2009 3:13pm
yankee (mail):


What makes this funnier to me is the comparison with the right-wing stereotype of the Ivory Tower academic who produces reams of egghead theories about how the world *ought* to work, but whose actual interference w/ same produces, at best, the Manifold Failures of the New Deal/Great Society, and at worst, Stalinism, the Cultural Revolution, and the Khmer Rouge.
9.21.2009 3:16pm
yankee (mail):
What makes this funnier to me is the comparison with the right-wing stereotype of the Ivory Tower academic who produces reams of egghead theories about how the world *ought* to work, but whose actual interference w/ same produces, at best, the Manifold Failures of the New Deal/Great Society

The "manifest failures" of Social Security and Medicare? Please, make this argument the centerpiece of your political platform.
9.21.2009 3:18pm
Anderson (mail):
If what you're saying is true, why not let the political branches simply ignore what the black robed folks decide?

This accepts the quaint notion of the Judiciary as a non-political branch.

Our federal government has three branches, one of which is the judiciary, and there is no such thing as non-political government.

Which isn't to say that judges make decisions purely politically -- they are I think the most constrained, "least dangerous" branch. But they are, clearly, part of the government.
9.21.2009 3:18pm
Anderson (mail):
The "manifest failures" of Social Security and Medicare? Please, make this argument the centerpiece of your political platform.

Those were irony-indicating capitals, Yankee; perhaps they didn't form correctly on your browser.
9.21.2009 3:20pm
einhverfr (mail) (www):
Hmmm....

I wonder if the Court would rule on the commerce clause at all here. After all, the case might be easier to settle on the basis that this is spending on general welfare accompanied by appropriate taxation. That seems easier to ground in the language of the Constitution than commerce clause questions.

If that is the case and it becomes simply a spending power case, then Randy's case goes out the window.

Really, the only way to render this act Unconstitutional is to repeal the 16th Amendment.
9.21.2009 3:21pm
Cornet of Horse:
Slater,

"if only the Supreme Court would adopt the correct/my preferred interpretation of the Consitution, then huge political changes would happen."

The point of attempting to find a correct (or at least more correct than present, acknowledging that perfection itself is not possible in this world) shared interpretation is to participate in a process that has for centuries nudged (pace Sunstein) people out of our own narrow personal preferences.

Likewise, requiring an actual Convention to materially change the constitution rather than farming it out to our black-robed friends might just necessitate a greater engagement on behalf of the public than our current irrational (contra Somin) level of ignorance.

Legal realism, while necessary, is insufficient alone to maintain a Republic.
9.21.2009 3:23pm
Anderson (mail):
After all, the case might be easier to settle on the basis that this is spending on general welfare accompanied by appropriate taxation

That kind of thinking is why my friend got bumper stickers printed up to read REPEAL THE GENERAL WELFARE CLAUSE.

He hasn't offered me one, yellow-dog lib that I am, but I'm sure he could do well selling them on the internet.
9.21.2009 3:24pm
Cornet of Horse:
yankee,

And the "right-wing" stereotype you note is what happens when Legal Idealism loses sight of the Real. Neither alone is enough.
9.21.2009 3:26pm
Anderson (mail):
might just necessitate a greater engagement on behalf of the public

See "FoxNews, Constitutional convention covered by," supra.

There's a reason the Framers met (1) secretly (2) under the guise of amending the Articles.

Anyway, arguments from "a better educated, more engaged public" are as persuasive as "civic virtue" arguments usually are. Had the Framers believed in the public's ability to conduct public business, they would not have created the Electoral College, or had the Senate elected by state legislatures.
9.21.2009 3:28pm
Jon Roland (mail) (www):
We would not be arguing about "is" and "ought" if we say "legal practice is what the courts say" and "the law is what the Constitution says". Then the word "ought" would be used in a statement like "legal practice should stop being in conflict with the law". Is that so difficult?
9.21.2009 3:32pm
ShelbyC:

The "manifest failures" of Social Security and Medicare?


Yeah. Because we "pay into" social security and medicare, we're going to be able to tell the next generation that they owe us our social security and medicare. And since we borrowed the money to run the government (and now pay for healthcare) while we were "paying into" social security and medicare, we're going to be able to tell them they have to pay for that too. I'd hardly call that a failure.

Well, I guess it depends what your goals are.
9.21.2009 4:21pm
einhverfr (mail) (www):
I would be hard pressed to see ANY possible defence of Medicare and Social Security as legitimate under the commerce clause though.

The spending clause, however, seems like a slam-dunk defence for these however.
9.21.2009 4:47pm
JeremyR (mail):
What I'd really like to know, is what will happen to those of us who can't afford to pay this? While I'm sure there are many that don't have health insurance because they don't think they need it, a lot of people simply don't have it because we can't afford it. Or the proposed fine, for that matter? What are they going to do? Seize our assets? Put us in jail?

That's the scary thing about this, it's like a tax for simply existing.
9.21.2009 4:59pm
Jon Roland (mail) (www):
einhverfr:

I would be hard pressed to see ANY possible defence of Medicare and Social Security as legitimate under the commerce clause though.

The spending clause, however, seems like a slam-dunk defence for these however.

Wrong. They benefit one part of the public at the expense of another. That is special welfare, and a violation of Art. I Sec. 8 cl. 1 that spending be only for the general welfare. That clause, properly understood, forbids redistribution of wealth.
9.21.2009 5:20pm
egd:
JeremyR:

What I'd really like to know, is what will happen to those of us who can't afford to pay this? While I'm sure there are many that don't have health insurance because they don't think they need it, a lot of people simply don't have it because we can't afford it. Or the proposed fine, for that matter? What are they going to do? Seize our assets? Put us in jail?

Not going to happen. If you can't pay, then taxes get raised on the rest of Americans, who can afford it.

The end result is very similar to the system we have now: people who can afford health coverage pay more so that people who can't afford health coverage don't have to pay. Some borderline people who can't pay the full price but don't know how to game the system get screwed.

The upside to the system is that more people get non-emergency coverage. The downside is that marketplace competition is reduced and prices increase to compensate for the increased demand and stable supply.

Honestly, I don't know why Obama is saying that the argument is complicated, it's not. Socialism is very easy to explain: "take from those who produce to give to those who do not." Defense of the health care market is the more complicated position to explain.
9.21.2009 5:22pm
Anderson (mail):
a lot of people simply don't have it because we can't afford it

I believe the idea is to subsidize the care for those who can't afford it.

It would be a good idea for those who think they can't, to contact their representatives about providing ample subsidies ... I've seen 400% of the poverty line proposed, for instance.

If you can't afford health insurance, then you can't afford to get sick.

Now, perhaps some of the problem is from those who "can't afford it" in the sense of "can afford it, but would rather spend the money elsewhere."

Those people, not to mention any dependents they may have, are presumably not planning to roll over and die when ill fortune strikes. Rather, they will obtain health care if at all possible, without paying for it.

Thus sticking "Society" with the tab, one way or the other.

It makes sense for their fellow taxpayers to say, "uh-uh, you're paying in, and you can just make do with your current cell phone or automobile or whatever."
9.21.2009 5:23pm
Anderson (mail):
They benefit one part of the public at the expense of another. That is special welfare, and a violation of Art. I Sec. 8 cl. 1 that spending be only for the general welfare.

Got a case to cite for that interpretation?
9.21.2009 5:24pm
Joseph Slater (mail):
Cornet: I'm all for nudging. I'm just saying that constitutional interpretation, "correct" or not, isn't going to cause the government/economy to be organized in a way that is contrary to the wishes of the vast majority of people.

Jon Roland: What's difficult is to figure out what the Constitutional actually says/means in a variety of tough and close cases.

And to all those using the term "legal realism," (i) that theory/movement is a bit more complicated than "law = politics," and (ii) it's often meant as a descriptive, not normative, claim about the legal system. So saying it would be bad if it were true doesn't answer the theory, because the theory says it is true, like it or not.
9.21.2009 5:25pm
Jon Roland (mail) (www):
Anderson:

They benefit one part of the public at the expense of another. That is special welfare, and a violation of Art. I Sec. 8 cl. 1 that spending be only for the general welfare.

Got a case to cite for that interpretation?

Remember, I don't accept court precedents as authoritative, beyond the case and its parties. They are not "law" for the public at large.

Once again I refer you to the words of James Madison, who wrote those words in the Constitution, is his Veto Message to Congress, March 3, 1817.
9.21.2009 5:44pm
ShelbyC:

That clause, properly understood, forbids redistribution of wealth.


I like it :-).
9.21.2009 5:45pm
Jon Roland (mail) (www):
Joseph Slater:

Jon Roland: What's difficult is to figure out what the Constitutional actually says/means in a variety of tough and close cases.

It's actually not as difficult as legal sophists try to make it seem. Once you clear away their crap most of the issues become fairly clear.

But I admit most people today do need to immerse themselves in the language of the Founding Era to deeply understand the Constitution.
9.21.2009 5:48pm
ChrisTS (mail):
Joh ROland:

I'm sorry, but the pomposity meter is just reading off the charts here.
9.21.2009 6:00pm
Sara:
"I don't accept court precedents as authoritative"

"I refer you to the words of James Madison"

How do you choose among your "authorities"?
9.21.2009 6:15pm
JK:

Jon Roland (mail) (www):
Joseph Slater:


Jon Roland: What's difficult is to figure out what the Constitutional actually says/means in a variety of tough and close cases.



It's actually not as difficult as legal sophists try to make it seem. Once you clear away their crap most of the issues become fairly clear.



I guess as long as you're willing to accuse anyone who disagrees with you of bad faith or ignorance it's pretty easy to come to a clear meaning.
9.21.2009 6:18pm
Anderson (mail):
Remember, I don't accept court precedents as authoritative, beyond the case and its parties.

Ooooookay.

AFAIK, Mars is completely devoid of any legal system. You could try yours out there. Radio back &let us know how it works out!
9.21.2009 6:21pm
Jon Roland (mail) (www):
Sara:

"I don't accept court precedents as authoritative"

"I refer you to the words of James Madison"

How do you choose among your "authorities"?

Lawgivers are authoritative, and Madison was the key lawgiver for the Constitution.

Judges are not lawgivers. They decide cases and apply the law, but don't make it, no matter what people say. If they get it right, great. if they don't, their decisions and opinions are null and void ab initio just like any other official act, and no one is bound to respect them.

Now, as a practical matter we go along with wrong judicial decisions that are "close enough", that is, within the bounds of honest differences in perception, but not if they far exceed those bounds. To use the sport metaphor favored by Justice Roberts, we go along with the umpire if he calls a ball in when it is out by an inch, but not not if it is out by a mile.

We have gotten to the point we are at in federal jurisprudence today largely through a series of inch-errors that have added up to miles as each error is built on previous ones, but at some point we have to fire the umpires and get a new set.
9.21.2009 6:23pm
Nunzio:
What would Madison do about national healthcare?
9.21.2009 6:26pm
Anderson (mail):
Lawgivers are authoritative, and Madison was the key lawgiver for the Constitution.

NO.

The states did not come to Madison as if he were Solon, and beseech him to give them a Constitution.

Madison was a bright guy who contributed a lot, but the Constitution was drafted in committee, debated and modified by a convention, and ratified by assemblies in various states.

This fantasy of a Lawgiver smacks of authoritarian wishful thinking, which frankly I always suspect where fundamentalism rears its head: "oh, this interpretation stuff is soooo mushy and uncertain! If only there were a Leader to tell us what the law really is!"
9.21.2009 6:30pm
Jon Roland (mail) (www):
Nunzio:

What would Madison do about national healthcare?

Veto it if Congress passed it.
9.21.2009 6:35pm
ShelbyC:

Remember, I don't accept court precedents as authoritative, beyond the case and its parties.


Are you suggesting that the judicial power of the united states is limited to actual cases and controversies, and not future cases and controversies?
9.21.2009 6:38pm
Jon Roland (mail) (www):
Anderson:

Madison was a bright guy who contributed a lot, but the Constitution was drafted in committee, debated and modified by a convention, and ratified by assemblies in various states.

And Madison, more than any other single person, played the leading role in drafting the words, reporting on the proceedings of the Convention, shaping the understanding of it leading up to the ratification debates, winning ratification of his own state, and commenting on its meaning in the decades following. On many points important to us today we simply have no other source.
9.21.2009 6:40pm
Jon Roland (mail) (www):
ShelbyC:

Are you suggesting that the judicial power of the united states is limited to actual cases and controversies, and not future cases and controversies?

That's a good way to put it. Thank you.
9.21.2009 6:42pm
Sara:
Lawgivers are authoritative, and Madison was the key lawgiver for the Constitution.

Where do you find the "key lawgiver," authority in the Constitution?
9.21.2009 6:45pm
ChrisTS (mail):
The Lawgiver. Shades of Plato's "Laws."
9.21.2009 6:47pm
loki13 (mail):

And Madison, more than any other single person, played the leading role in drafting the words, reporting on the proceedings of the Convention, shaping the understanding of it leading up to the ratification debates, winning ratification of his own state, and commenting on its meaning in the decades following. On many points important to us today we simply have no other source.


That's a load of mularkey. "More than any other single person..."

Hamilton, I understand, did a fine job, and not only wrote more of the Federalist, but edited Madison and Jay's contributions. And the Constitution was the product of a committee.

Your fantastical beliefs seem rooted neither in jurisprudence (which you reject) nor in history (which you cherry-pick) but in the all-encompassing faith that you are right, and everyone else is just misguided.

Good luck with your conversions! For now, I prefer a more secular constitution, in which the meaning is derived from the consent of the majority of the governed (us) and not fixed by the beliefs of one person (you).
9.21.2009 6:50pm
Sara:
So, I guess we have key lawgivers like Madison and minor law givers like Supreme Court Cheif Justice and Constitution ratifier John Marshall. Hmm, if only we had a court to decide amongst them.
9.21.2009 6:53pm
Blargh:
Uh oh, I think I smell a tax protestor! Hey Roland, how does that argument of work out in court? How many times have you been sanctioned?
9.21.2009 7:15pm
Blargh:
Judges are not lawgivers. They decide cases and apply the law, but don't make it, no matter what people say. If they get it right, great. if they don't, their decisions and opinions are null and void ab initio just like any other official act, and no one is bound to respect them.

Can you give us an example of some caselaw that you routinely ignore/break?
9.21.2009 7:18pm
Jon Roland (mail) (www):
Sara:

So, I guess we have key lawgivers like Madison and minor law givers like Supreme Court Cheif Justice and Constitution ratifier John Marshall. Hmm, if only we had a court to decide amongst them.

Let's start with the Virginia ratification debates and try to measure how much each participated in the debate. We find that John Marshall spoke

Once on June 10, 1788
Mention of his remarks on June 11, 1788
Two remarks June 16, 1788
One remark June 20, 1788

So he contributed to the debate, according to the record, on four of the 21 days of debate, with brief remarks.

I will leave it as an exercise to the reader to measure, by any metric you care to adopt, the contributions of Madison to that debate.
9.21.2009 7:31pm
Jon Roland (mail) (www):
Blargh:

Hey Roland, how does that argument of work out in court? How many times have you been sanctioned?

So are you arguing that might makes right, that those that have a preponderance of physical force are always right because they have the physical power? I don't like living in that kind of country.
9.21.2009 7:37pm
Jon Roland (mail) (www):
Blargh:

Can you give us an example of some caselaw that you routinely ignore/break?

Obviously I'm not going to do that, but I do take every advantage to speak out against decisions I regard as wrong.

Interestingly, I seem to be gaining a lot of support. 1.7 million of them showed up in DC Sep. 12.
9.21.2009 7:40pm
loki13 (mail):
Jon,

While you are apparently sarcasm-impaired, I notice that you are also textually-impaired. Notice that Sara was contrasting "key" and "minor" lawgivers, so your rebuttal is, uh, funny. I do, however, look forward to your new metric whereupon you rank every Framer's contributions (number of times speaking in a ratifying debate in their state, the importance of their state, number of comments in the constitutional convention, number of good secondary sources written- like the Federalist, number of slaves owned etc.) into a single metric and explain to us which LawGiver came down from the mountain with "THE INTERPRETAION."

If only Madison could explain it all to us!
9.21.2009 7:41pm
Blargh:
Obviously I'm not going to do that, but I do take every advantage to speak out against decisions I regard as wrong.

So does everybody else. But I thought you said we're free to ignore decisions we think are wrong?
9.21.2009 7:58pm
Cornet of Horse:
Anderson,

"See "FoxNews, Constitutional convention covered by," supra."

As long as it's covered by CNN, C-SPAN, and various blogs (not least this one), I'm sure the truth will be flailing around there somewhere. [insert scathingly cynical retort here] Well, you go to a Convention with the people one has, not the one one wishes one had. Dissolving the people and electing a new one is not an option.

"There's a reason the Framers met (1) secretly (2) under the guise of amending the Articles.

Anyway, arguments from "a better educated, more engaged public" are as persuasive as "civic virtue" arguments usually are. Had the Framers believed in the public's ability to conduct public business, they would not have created the Electoral College, or had the Senate elected by state legislatures."

Not from, but for. The act of participating in a convention itself, not least the necessity of encountering and surmounting dissenting viewpoints, would serve to offer a counterbalance to the current cocoonification of political discourse.

The Founders recognized the importance of keeping in mind both the Real and the Ideal. Instituting checks and balances within the government, republican safeguards against democratic mob sentiment, and a written constitution to ameliorate the effects of bad-apple generations of voters, they dealt with the reality of man as he is, but they simultaneously recognized the crucial unifying power of common ideals, and the central role the pursuit of the ideal of an informed and engaged citizenry plays in preserving the life of a Republic.

Had they not, they would not have bothered with Democracy at all.
9.21.2009 8:09pm
Cornet of Horse:
Slater,

"Cornet: I'm all for nudging. I'm just saying that constitutional interpretation, "correct" or not, isn't going to cause the government/economy to be organized in a way that is contrary to the wishes of the vast majority of people."

I'm saying the process involved in attempting to hammer out shared interpretations that are agreed to be more correct is a valuable one and can have a non-negligible effect on the content of those wishes themselves. Throwing up one's hands not so much, unless I've misread the historical record of the respective approaches.

"Jon Roland: What's difficult is to figure out what the Constitutional actually says/means in a variety of tough and close cases."

Of course. But that's a thin reed upon which to premise strong Legal Realism approaches such as the ones wafting through the last few threads. Hard cases make bad law.

"And to all those using the term "legal realism," (i) that theory/movement is a bit more complicated than "law = politics," and (ii) it's often meant as a descriptive, not normative, claim about the legal system. So saying it would be bad if it were true doesn't answer the theory, because the theory says it is true, like it or not."

The problem is the theory's reductionism - i.e. what it rules out of bounds, not the truth of what it contains in its bounds. It's a useful corrective to an Idealism unrelated to actual human behavior, but that's not how its being applied here to poor Barnett.

BTW, Randy, I believe it may be too late for stunned exasperation. We need some sober-minded thinking about what is to be done.
9.21.2009 8:21pm
Cornet of Horse:
Slater,

"contrary to the wishes of the vast majority of people"

There are people involved here who are long dead and yet to be born, the latter being taxed, and heavily, without representation as we here debate, and the sacrifices of the former frittered away for a return I doubt they'd consider much worth it.

As a written Constitution is something of an imprecise means to reflect their wishes, I'm always open to better suggestions. Until we find them, the Constitution retains some salience beyond that I've seen accorded to it by the participants in this discussion.
9.21.2009 8:29pm
Joseph Slater (mail):
Cornet:

I think you over-read me or misread me. I'm all for trying to hammer out shared interpretations. And I'm not pushing the type of reductionist realism you are opposing.

I'm simply making what should be a pretty obvious point about political development. Lots of things drive history, and the idea that 5 Supreme Court justices could stop what generations of folks have wanted to do is a fantasy of both left and right legal scholars.

So sure, the Constitution retains some salience -- I would certainly give it some. But the court isn't going to overturn fundamental New Deal precedents and return to Lochner, nor is the court going to impose socialism, even if academics and a handful of activists think up clever arguments about why such results are compelled.
9.21.2009 8:51pm
NR:
Jon Roland said: Interestingly, I seem to be gaining a lot of support. 1.7 million of them showed up in DC Sep. 12.

1.7 million? Really? Really??
9.21.2009 9:51pm
NR:
Did I miss the post where Orin Kerr attacked Randy Barnett and ridiculed his views on the Constitution? I thought Orin's post on the is/ought distinction was offered in good faith and meant to help explain why intelligent and well-informed people could take such diametrically opposed positions on whether a proposed law would be "constitutional" if enacted. I do not recall Orin expressing a view on whether that law would or would not be "unconstitutional" under either meaning and am therefore mystified by Randy's snarky rejoinder to his "realist colleagues," which I took to include Orin. So, really, did I miss something?
9.21.2009 10:11pm
Jon Roland (mail) (www):
NR:

Jon Roland said: Interestingly, I seem to be gaining a lot of support. 1.7 million of them showed up in DC Sep. 12.

1.7 million? Really? Really??

According to an analysis of Zac Moilanen of Indiana University.
9.22.2009 1:42am
Jeff Walden (www):
NaG, I think Randy Barnett, while saying what he believed, made a conscious decision to affect a particular style of argumentation, one he doesn't have an opportunity to use in most discourse, one which he rarely uses even when the opportunity arises. It's a blog post, you have to have fun with the venue from time to time. :-)
9.22.2009 2:29am
PubliusFL:
Ari Indik: Isn't the power to "provide for the common defense and general welfare" generally considered the "spending power"?

Today, yes, but at the time of the ratification debates, the idea that the clause you quote constituted an independent grant of power to spend on the common defense and general welfare was indignantly refuted by Publius (in the Federalist) as a ridiculous fantasy on the part of the Antifederalists opposing ratification of the Constitution. Somehow, at some point, things got flipped due to the is-ought effect.
9.22.2009 9:53am
Justin (mail):
Jon Rowland, when you say something like "Zac Moilanen" of Indiana University, you are giving the impression that Mr. Moilanen is a professor at Indiana University. More accurate would be Zac Moilanen, undergrad student at IU. That doesn't mean Zac Moilanen is wrong (although he is), but it certainly defeats any "argument from authority" that you are trying to make.
9.22.2009 9:58am
Anderson (mail):
Jon Roland said: Interestingly, I seem to be gaining a lot of support. 1.7 million of them showed up in DC Sep. 12.

1.7 million? Really? Really??


I think there probably *are* that many squirrels in D.C.
9.22.2009 10:18am
jukeboxgrad (mail):
roland:

According to an analysis of Zac Moilanen of Indiana University.


Is he another authority? Like Madison, The Lawgiver? Moilanen is an ignorant undergraduate. You've been spending too much time watching Glenn Beck.

According to that prominent moonbat Charles Johnson, you and Zac are inflating reality by a factor of 17.
9.22.2009 12:25pm
Cornet of Horse:
Joseph Slater,

"Cornet: I'm all for nudging. I'm just saying that constitutional interpretation, "correct" or not, isn't going to cause the government/economy to be organized in a way that is contrary to the wishes of the vast majority of people."

Those wishes themselves are not given, uninfluenced by the need, or lack thereof, to find consensus.

What I'm saying is that by reading "interpretation" as "Randy Barnett's interpretation" you, and Prof. Kerr as far as I can tell, unwittingly (I hope) completely obviate the crucial process of hammering our shared interpretations the constitutes our Republic as much as the written document itself does.

Randy is not saying "look, I'm right", he's saying "I thought we had an agreement. Here's where we wrote it down. Agreements are good - if we're going to have any more, let's honor the ones we have."

Now you can say that is what you're attempting to do too, but what you can't say is that it is out of bounds for him to appeal directly to those words themselves, as if they had no force outside the Magisterium of the Court.
9.22.2009 12:48pm
Joseph Slater (mail):
Cornet:

Perhaps I could pinpoint where we disagree as follows. I'm willing to say that discussions on the proper interpretation(s) of the Constitution are one place where meaningful debate over our shared interpretations of political culture take place. But they aren't the only one, or even, in my view, the most important one. And I mean that as a descriptive claim, not necessarily a normative one. Although in fact, I also mean it as a normative one.

But let me ask you this question. Suppose, tomorrow, 5-6 Supreme Court justices said, "hey, those libertarian academics are right: New Deal laws (Medicare, Social Security, the NLRA, the FLSA) and Great Society laws (Civil Rights Act of 1964, Medicare, etc.) are all unconstitutional." What exactly do you think would happen next?

If you're only suggesting that folks should argue that their sincerely held view of the Constitution should be the correct one, I have absolutely nothing against it. Except -- and this is my only point, really -- that this approach radically overstates the importance of Constitutional interpretation as a mechanism of political development.
9.22.2009 1:06pm
Cornet of Horse:
Slater,

"But let me ask you this question. Suppose, tomorrow, 5-6 Supreme Court justices said, "hey, those libertarian academics are right: New Deal laws (Medicare, Social Security, the NLRA, the FLSA) and Great Society laws (Civil Rights Act of 1964, Medicare, etc.) are all unconstitutional." What exactly do you think would happen next?"

I have reason to believe that someday (as you would likely note, when doing so becomes politically tenable, or fiscally unavoidable - likely both) that (with the exception of the Civil Right Act of 1964) will happen. That day obviously isn't today.

As to what would/will happen next, they would/will be replaced (by the legislature) by an equivalent less reliant on positive rights, as happened with Welfare Reform in the late 90's. That precedent leads me to believe that the legislature is likely to tackle it before the courts do.

Which is all somewhat beside the point as here we're considering de novo legislation rather than long-established programs with all the attendant complications that introduces.

"If you're only suggesting that folks should argue that their sincerely held view of the Constitution should be the correct one, I have absolutely nothing against it."

No, I'm arguing that people should be able to refer to the text of the Constitution without getting laughed out of the room or denigrated as a "tenther", or whatever the term-of-abuse-of-the-day is. I'm also arguing that hammering out shared interpretations of the Constitution is a valuable process in itself, that threatens to become obviated by farming it out to a modern-day equivalent of the House of Lords.

"Except -- and this is my only point, really -- that this approach radically overstates the importance of Constitutional interpretation as a mechanism of political development."

My sense is that that is currently true, but not necessarily true, and that the opinion taken on the question by influencers like yourself and Orin Kerr has a non-negligible effect on the truth of the proposition itself.
9.22.2009 4:26pm
Joseph Slater (mail):
Cornet:

I still sense that you are mostly having an argument with someone other than me. I'm not laughing anyone out of the room or using a term like "tenther" -- I honestly don't even know that that term means. And I already said that hammering out shared interpretations of of the Constitution can be valuable and should be done.

I do, however, think that radically overstates the importance of Constitutional mechanism in political development. And I think that is, at least in broad brush, necessarily true. But you seem to agree with me in saying that New Deal and Great Society laws won't be overturned unless there is a political sea change. So I'm not sure how we differ.

Unless it is on whether I, or even Orin, is an "influencer" who could change this dynamic. While I appreciate the thought, I'm really pretty sure I'm not.
9.22.2009 5:18pm
Cornet of Horse:
Jospeh Slater,

"Unless it is on whether I, or even Orin, is an "influencer" who could change this dynamic. While I appreciate the thought, I'm really pretty sure I'm not."

That's one of the qualifications for the job. Another is not to spend too much time worrying about ultimate futility or the lack thereof. That's out of your hands. Kant, virtue, conscience, yada, yada, yada.

"So I'm not sure how we differ."

The relative futility of acting on the ought in conjunction with the is, and the relevance/determinacy of said futility.

"I'm not laughing anyone out of the room or using a term like "tenther" -- I honestly don't even know that that term means."

The "Golden Idol" comparison had the effect, if not the intention, of the former, while the latter confirms my chief worry - that people aren't even reading what Barnett is actually saying before jumping in to argue against what they were expecting him to say, then claiming he was playing rhetorical tricks.

The "tenther" reference is a central point of Randy's initial post.

Randy has not claimed that his interpretation is the real Constitution (at least not here) but rather that the ding an sich, the string of characters that one can bring up on google, is, and even if one wants to argue that the text is inseparable from the interpretation of the text, it still does not follow that Randy is therefore arguing (here) that his interpretation is the only valid one, only that valid ones account, at minimum, for the text itself.

At some level, the normative will not be dodged, unless we do in fact wish for it to be opinion all the way down, at which point the community engendered by shared understanding unravels.
9.22.2009 9:10pm

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