Posted by Brad @ 7:07 pm on April 2nd 2012

Quote of the Day

“Our basic purpose is to keep the sovereign, that Leviathan, to manageable proportions. That task is not an easy one, because a constitution requires that one make judgements in the abstract, with confidence that they will hold good in the particular cases that arise in the future. That has proved a recurrent difficulty with all substantive guarantees, but not a hopeless one. The ambiguity and error at the margins, be it with property or speech, are well worth tolerating to preserve the core.”

—Richard Epstein, Self-Interest and the Constitution

I think of this a lot when I talk to liberal or conservative apologists for clearly unconstitutional overreaches in specific cases, be it health care or killing American citizens, due to that case being some kind of special exception. In other words, we’re asked to define constitutionalism by the outliers (which then sets the rule that it was originally supposed to be the exception proving). The problem, of course, is that we have become ruled by the exceptions. And we don’t understand that, in a constitutional system, we have to tolerate ambiguity or errors on the margin for the sake of protecting the core, in a very similar way to our justice system ostensibly being organized around protecting the innocent even if it means a hundred guilty go free—which is another organizing principle that I get the feeling Americans don’t believe in much anymore.


  1. Do you really believe that obamacare is “clearly unconstitutional” or am I overparsing and reading you out of context?

    Comment by Jack — 4/3/2012 @ 6:24 pm

  2. No over-parsing: I said it very plainly. I do believe that, at least by any rational definition of founders intent and plain meaning. And I believe our contemporary reading of the Commerce Clause, almost entirely a result of what amounted to a coup by Roosevelt in stacking the Supreme Court because they had ruled against him on those grounds, is rather plainly a bastardization of original intent. And to then apply that bastardization to apply not just to engaging in all commerce (redefined to include any economic activity, including manufacturing, farming, mining, etc.) but to NOT engaging in commerce, is many degrees removed from anything that could be called constitutional, at least in any sense of that term that might mean “according to the powers enumerated in the constitution by any reasonable reading of the words on the page.

    How you read this line: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes”–along with all the surrounding documentation of the views of the authors, to include forcing private citizens to buy a product from private companies, is entirely beyond me. We all know damn well what that clause means and was intended for – as a way of granting Congress the power to arbitrate trade disputes and keep commercial traffic running smoothly between American and foreign nations and states and other states. But we pretend it means “Congress can do whatever it wants regarding any and all economic activity.”

    I also don’t see how you allow that reading and not acknowledge that said reading gives the federal government the power to deny or compel any economic activity of the citizenry whatsoever. Even Justice Kennedy had to note that in the arguments of this case. (Paraphrase): “I recognize that the government is arguing that health is a completely unique situation. And that argument will hold until the next completely unique situation.” But by then, of course, we’ll have precedent. It’s precisely the same situation as Al-Alawki, or indefinite detention of 911 suspects, or violating 4th amendment rights for a really bad child molester.

    But I think your question is itself sort of emblematic. Because I think (and this is me presuming, granted) that what you’re really asking is “Wait, so you’re against Obamacare?” That’s what a lot of conservatives mean when they say “unconstitutional”. They mean “I hate this.” So when I say the individual mandate is unconstitutional, I do not say that as a value judgement. Nor do I think universal healthcare is unconstitutional – I would have no qualms, for instance, with a single payer Canadian system, at least on the grounds of constitutionality.

    It’s not the expansion of health care I object to. It’s the retrofitting of a legal justification that is plainly disingenuous, no matter how well-intention. The problem is, after 100 years of that sort of thing, the rule of law becomes entirely meaningless. You have to be willing to strike down the things you like too, on the same grounds as you would gleefully would strike down that which you don’t. Otherwise, you’re not being ruled by a written law in any meaningful sense, but in majority, faddish popularities. Which is precisely what a constitution is meant to protect again, for reasons that are both obvious but also completely foreign to the normal political mindset in this country anymore.

    Comment by Brad — 4/3/2012 @ 7:10 pm

  3. And, to bring it full circle with the post and the end of that comment, what I mean to say here is I think part of the problem is precisely what this example illustrates. Constitutionalism being real real important in cases where the other guy is doing something, but a mere inconvenience for which a polite fiction will suffice when it’s something your guy is doing that you like because, in that case, it’s real important. Of course, that’s what the other guy thinks about his thing, and the problem is every time a conservative successfully instantiates a polite fiction that the 4th amendment doesn’t really mean what it plainly says (because to do so means you couldn’t kill a terrorist planning an imminent attack on America!), it then paves the road for the other guy to deploy their own polite fiction when they get into office and decide the Interstate Commerce Clause means the federal government and compel all private citizens to enter into private contracts with private health insurance companies (because to not do so means people are uninsured and die in waiting rooms!). AND VICE VERSA.

    Today’s justification for health care is tomorrow’s justification for vetoing state medical marijuana laws. Tomorrow’s law banning seditious speech in the case of criticizing the government’s foreign wars is today’s argument that the media ought to be regulated to penalize Fox News and it’s ilk because they’re using a public resource (airwaves) and not serving the public good, or that laws should be passed to protect middle schoolers for being mean to gay-seeming middle schoolers. Or whatever – there’s a million examples.

    Comment by Brad — 4/3/2012 @ 7:28 pm

  4. Your paragraph four of post 2 is not correct in terms of my question. I understand, and understand that you understand, the difference between the constitutionality and desirability of public policy and law.

    I was hung up on the word “clearly” more than anything else, in that a very wide spectrum of legal and political thought expressed the view that the law was either constitutional or at least a close call. Perhaps the hedgers were merely discussing the odds rather than there personal views, but there you have it. I understand your perspective better now, but I do give some credence to the “helping out the struggling Solicitor General” questions by some of the more liberal Supremes, in that health care is “unique” precisely because those who do onto participate do so right up until the are in the hospital, at which point they decidedly participate in a negative fashion.

    Comment by Jack — 4/3/2012 @ 9:22 pm

  5. Alright – it’s a fair point. And I should have couched it better, because my definition of what constitutionality means is different than how it is settled in actual law, where the bar you have to clear isn’t the constitution, but rather the last iteration or interpretation of it. In that sense, whether or not something is declared legally constitutionally permissible is a bit of a different animal, as in that case you’re very rarely going off the document itself, but rather the document through a 200-year game of telephone. I am very much an originalist, if you haven’t noticed, but it’s not like I don’t recognize that the way I think constitutionality is supposed to work is not, presently, the way it usually does.

    A closely related question is whether anybody will RULE something unconstitutional (which both is, and isn’t, the same thing as whether something is actually constitutional or not). I think it is very hard for ANYBODY to argue that, even the Wars on Iraq and Afghanistan are constitutional, but we maintain a polite fiction, because sometimes being constitutional is collectively seen as just being too big a pain in the ass, and no court wants to go against the political headwinds to assert itself on the matter. But that’s rather the point, isn’t it? That a disinclination to actually rule on constitutionality is a de facto dissolution of constitutionalism and the constitution and a de facto empowerment of arbitrary, politically-motivated, system of laws that hew to no higher authority or basic ground rules or articulated social contract.

    As to the very wide spectrum assuming the law was constitutional, that’s actually been one of the interesting things about this case, in that I think a lot of liberals or moderates were sideswiped a bit that, in fact, that very wide spectrum was less wide than they thought it was and that, in fact, the “conservative” argument against the law’s constitutionality was a lot more sophisticated, persuasive, and widely held than they had assumed. They had siloed themselves a bit in their own interpretation of the Commerce Clause, such that they just sort of assumed anybody who didn’t share it was beholden to quackery and not a person that existed in “serious Washington”. And I don’t blame them – as inclined as the judiciary has been, since FDR, to use the Interstate Commerce Clause as a magic bullet to justify, and as disinclined as the judiciary has been to wade into political matters (which is, btw, their job), one could have been forgiven for assuming that the days of Carter v. Carter Coal Company were as distant as the literal views of the founding fathers. There has seemingly not been a “bridge too far”, but we may have finally hit upon one, or at least we may at least have a case where people are given pause by the sheer scope of where our interpretation Article One Section 8 Clause 3 has taken us. As judges have been asking all along as this case has wound its way up the chain, “If this is upheld, what power can’t the government claim under the clause?”

    I happen to hold, as to your last sentence, that health care is NOT particularly unique in the sense that those that opt out of the market in a positive fashion end up opting in in a negative one. More than that, it’s not hard to see how a precedent to that effect could be used for virtually anything else – the very definition of “not unique”. From the fat content in foods to the choice of American or imported manufactured goods to the decision of paper or plastic to homebuying to the question of whether you become an organ donor, there really aren’t many examples that I can think of that couldn’t be stretched to fit a Commerce Clause interpreted to mean that any economic decision you make that affects other citizens, whether that decision be positive or negative, falls under the jurisdiction of Congress. Can you, honestly?

    Comment by Brad — 4/4/2012 @ 9:49 am

  6. Perhaps I have not expressed it well, or I am misunderstanding this iesuses, but I am having trouble seeing how fat content, organ donation, etc are related to this slippery slope using the specific logic train I poorly articulated. Trying again: If you opt out of the health care market and are in essence a freeloader on the system, you will almost certainly eventually be drawn into the market due to mandatory emergency care. Nearly everyone gets hurt or sick, and everyone dies. At those points, you are taking up medical resources and the enormous costs associated with them that have heretofore been born by everyone else. How does not eating or eating fat relate to this? or organ donation?

    I respect the slippery slope idea in general terms, but not as you have applied it.

    back to the odds market: I still can’t help but feel that there is a lot of early crowing from the right on this issue, reading tea leaves based upon oral argument questioning is not a reliable prediction method. We could be in for a renewed shock in June.

    Comment by Jack — 4/4/2012 @ 8:06 pm

  7. Again, I think, as a general rule, it’s a mistake to legislate or interpret at the margins (“Since this Special Exception Requires X, Allow X” quickly becomes “X is Allowed” in the most general sense – think the right to privacy from warrantless searches to the right to not participate in a market activity with a private corporation”), which is the purpose of the quote above. The Patriot Act will only be used for terrorism. Special exception!

    And once you strip away the specifics here, what is being laid down is the precept: “an economic decision you make that affects other citizens, whether that decision be positive or negative, falls under the jurisdiction of Congress.” Am I wrong in that interpretation? Feel free to rephrase it yourself.

    Your decision to take up smoking, for instance, adversely impacts those that might surround you while smoking, and means that you will incur further health care costs down the line that society will have to bear – same with, say, trans fats. Your decision as to whether to use paper or plastic impacts the environment we all have to share. Your decision to not buy an American automobile impacts unemployment and manufacturing in the nation’s work force, in a way that ultimately may put a strain on the government’s safety net. Your decision to not buy into a private retirement plan means you will be more likely to have to become dependent on social security. Your decision to opt out of the public or private education market and instead home school your kid makes it more likely said kid will be a dummy, which leads to increase risk of criminality, less economic competitiveness for the United States, blah blah blah blah blah.

    There is absolutely no end to societal ramifications of economic decisions, be they positive or negative. From a farmer who chooses to not grow corn to a cancer patient growing marijuana for personal use to eating trans fats to a bar owner in Brooklyn not wanting to sell his property to a developer looking to create a retail coridoor to choosing to spend your twenties rolling the dice by saving that money you’d put into health insurance to pay off student loans, I’m not reaching here. If there is one lesson we ought to have learned it is that, once you expand the boundaries of federal authority, you almost never have the ability to retract it again and, more than that, once you start making the border porous, it is next to impossible, regardless of your original intent, to have the water flow stop once your cup is full. Sorry, getting a bit lost in my analogies, but the point is, as Justice Kennedy noted, it is ALWAYS a “special exception” when the government is seeking to work around black and white rules. More than half the cases that appear before them are, in some way or another, “special exceptions” – a precise configuration of circumstances and actors that require a different reading of the law than would, at the face of it, seem to apply. And it’s the special exceptions, not the norm, that tend to define the boundaries of the law. Hell, that’s what precedent is. The details are only nominally important – what’s important is the scope of law. We don’t remember Marbury vs. Madison because of how it impacted the physical transfer of judicial appointment notices, for instance, or Plessy vs. Ferguson for how it impacted the Louisiana railroad. The principle behind the cases are precisely what give these rulings their enormous gravity and impact.

    And the principle here is that, if by not engaging in a private economic activity, you are nevertheless affecting the public economy or the economic activities of your fellow man, then you can be compelled to engage in that private economic activity on the grounds that it’s better for everybody else if you do.

    And that’s an AWFULLY big “special exception”.

    Comment by Brad — 4/6/2012 @ 1:19 pm

RSS feed for comments on this post.

Leave a comment

You must be logged in to post a comment.