Constitutionally Defenseless?

Has thirty years of political conservatives pushing “judicial restraint” left us constitutionally defenseless against an unprecedented claim of Congressional power? Judicial restraint was a judicial philosophy devised by Progressives to overcome Supreme Court resistance to the then-unprecedented growth of federal and state power during the so-called Progressive Era. After the Warren Court deviated from this restraint, it was reasserted, this time by political conservatives against liberals. Now, in the face of a renewed progressive legislative activism to expand federal power, judicial conservatives have been uncharacteristically quiet about the constitutionality of these measures. Today, on National Review Online, Colorado law professor Robert F. Nagel breaks radio silence to condemn the constitutional challenges to the individual health insurance mandate. The piece is long and you should read it all, but two points stand out.

The first is the repeated reference to “judicial power” as though judicial negation is the same as legislation. If Professor Nagel believes that judicial review is unconstitutional–as some conservatives do-let him say so. But if the judicial negation of unconstitutional legislation is a part of the “judicial power” of the United States (which is overwhelmingly supported by historical evidence, some of which is presented in my book Restoring the Lost Constitution: The Presumption of Liberty) and the courts may ever hold legislation unconstitutional let him explain why holding Congress to its constitutionally enumerated powers is somehow illegitimate. Yes, I know the drill. Express prohibitions and all that, but we are not talking the Ninth Amendment. The enumerated powers scheme is as “express” as the Bill of Rights.

The second is the distortion of the Supreme Court’s Commerce Clause doctrine, which Professor Nagel summarizes as follows:

The Court’s general standard demands merely that the affected activity must, in the aggregate, have a substantial impact on interstate commerce. It is difficult to see how anyone could conclude that requiring millions of people to purchase medical insurance would not have such an impact.

In fact, the Supreme Court in both U.S. v. Lopez, and U.S. v. Morrison held that the “affected activity”–actually intrastate activity–must be “economic” in natural. And the Court followed this doctrine in Gonzales v. Raich when it held (relying on a 1966 dictionary definition) that possessing, growing, distributing a commodity such as marijuan was “economic” activity. To date, the Congress has never claimed the power to require that persons engage in economic activity, and consequently the Court has never upheld the constitutionality of such a power. Instead, until now, Congress has always confined itself to the regulation or prohibition of activity.

Further, the second sentence is also inaccurate: “It is difficult to see how anyone could conclude that requiring millions of people to purchase medical insurance would not have such an impact.” But it is not the “requirement” that must be shown to substantially affect interstate commerce, it is the economic intrastate activity being regulated that must affect interstate commerce–or in this case the “decision” not to engage in economic activity.

In fairness to Professor Nagel, for 60 years, law professors taught that the Supreme Court’s Commerce Clause doctrine was pretty much as he describe it in his first sentence, so this is very likely how he was taught it as a law student at Yale. But that doctrine was clarified in 1995. Of course, the Supreme Court has the “power” to reverse itself and extend Congress’s power beyond where it has ever gone before, as Professor Nagel would have it do. But this would be to make new law, not follow what has been said before.

Professor Nagel endorses the judicial restraint exercised by the Court in Kelo v. City of New London on the ground that political action in 42 states allegedly weakened the power to take property for economic development. Setting aside the fact that much of this legislation is symbolic and ineffective–as Ilya could explain better than I–it was the very prominence of the 5-4 Kelo decision that raised the consciousness of the American people against this abuse of the Takings power. Had the challenges been routinely turned away (as such challenges had long been turned away) the American people would not have known how precarious their property rights truly are and there would have been no political backlash–such as it was. It was only because Supreme Court had been friendly to such challenges, and the novel argument of the Institute for Justice concerning economic development takings, that the high profile refusal of the Court to enforce the Constitution could engender political action.

If the Supreme Court upholds the individual insurance mandate–as it usually upholds acts of Congress (see e.g. the Comstock decision handed down today)–it will be fundamentally redefining the relationship of citizens to the U.S. government. That too would be an exercise of “judicial power.” Just one that would violate rather than follow the U.S. Constitution.

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