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"Constitutionality" and the Real Constitution:
I agree with the predictions of my fellow conspirators: When deciding whether a Congressional mandate to buy private insurance is "constitutional," the Supreme Court will likely ignore the Constitution. And since this mandate is unprecedented, their actions won't be dictated by their precedents either, even if they were inclined to follow their precedents when they don't want to, which they aren't. But all this evades my original disagreement with Professor Jost that Orin though was resolved by his is-ought distinction between "what the Constitution is" and "what the Constitution ought to be."

Professor Jost wrote two things that got my attention. Thing #1 was his reference to those who cite the Tenth Amendment as "Tenthers." In response, I cited the first sentence of Article I, and the Necessary and Proper Clause as reiterating the view that Congress only has the powers "herein granted" or "vested by this Constitution in the government of the United States, or in any department or officer thereof." So Supreme Court doctrine that, in effect, finds no limit to Congressional power must disregard not one, not two, but three explicit passages of what many Americans still naively believe to be "the Constitution."

Thing #2 was the following statement: "a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform." In this passage, Professor Jost articulates the view of most con law professors--including Orin apparently--that "the Constitution" is what "the Court now recognizes" so the answer to the question of "constitutionality" is to engage in predicting how the Court will rule.

I reject the proposition that "the Constitution" is whatever the Court says it is or, more accurately for present purposes, how the Court may rule in some future case. I insist that "the Constitution" is the wording of the document under glass in DC. So whether something is "constitutional" depends on what "the Constitution"--the real one--says. (Of course, because the written constitution does not answer all questions to which we need answers, constitutional construction is needed to supplement constitutional interpretation. But such construction may not contradict what the Constitution--the real one--says or that construction is itself unconstitutional.)

Whatever basis Orin, Ilya, David or I have for our predictions of future Supreme Court decisions, there is one thing on which none of us rely: the Constitution, the real one. Not the Constitution as it "ought to be" but the Constitution--or "this Constitution"--the enacted one, the one that thousands of Americans visit each year.

In support of his reasonable prediction, Orin offers the following equally reasonable proposition: "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. . . . As soon as the issue takes on practical importance, however, the votes generally aren't there." But what type of proposition is this? Is it "the Constitution"? Is it even "constitutional law"? If it is neither, then I do not see how it is responsive to the question of whether a mandate to buy private insurance in constitutional, unless one redefines "constitutional" to mean "whatever the Court can be predicted to rule." THIS is what Orin calls a "semantic" issue, which it is, but it is not merely semantic. It is also substantive and very important issue to boot.

If "the Constitution is what the Court says it is," why did Justice Sotomayor repeatedly insist she would follow the law, and that following the law was all a judge should do? Did she secretly mean "I will follow the law, which is exactly the same as how I may want to rule for political and policy reasons"? OK, she did secretly mean that, but why keep it a secret?

Could it be that, had she admitted what Professor Jost, and apparently Orin, thinks is obviously true about "constitutionality," SHE WOULD NOT HAVE BEEN CONFIRMED AS A JUSTICE? I think that is a pretty safe prediction. Indeed, I predict that she and the White House actually made this very prediction, which explains her repudiation of everything constitutional law professors believe about "constitutionality."

Why would this prediction have been so safe--even safer than Orin's, Ilya's, David's, and my prediction about a future Supreme Court ruling about a health insurance mandate? Maybe because, unlike law professors, the American people still believe that "the Constitution" is the words on that piece of parchment, and that "constitutionality" depends on what those words say. True, many Americans do not know what it says, but that does not changed the brute social fact of what the Constitution still IS. Hence Justice Sotomayor's testimony that she will follow the words.

So here is my question: if Orin and Jost are right, why not come out and testify to that position under oath: That "constitutionality" is what the Supreme Court says it is unconnected from what the Constitution actually says? And until that happens, maybe the Constitution still IS the words on the parchment under glass that most Americans believe it to be. And if this is true, then does not "constitutionality" depend on what those words say--including the Tenth Amendment--regardless of how the Supreme Court can be predicted to rule, and regardless of whether the Supreme Court follows the words of the Constitution--the real one.

Let me close by repeating something else I posted on the Politico that lies at the very heart of this debate:
if the Supreme Court adopts a "presumption of constitutionality" by which it defers to the Congress's judgment of the constitutionality of its actions--as it has and as "judicial conservatives" urge--and the Congress adopts Professor Jost's view that "unconstitutionality" means whatever the Supreme Court says, then NO ONE EVER evaluates whether a act of Congress is or is not authorized by the Constitution. A pretty neat trick--and a pretty accurate description of today's constitutional law.
This point is so important that I should repeat it. When it comes to the enumerated powers of Congress, the Supreme Court should defer to Congress's assessment of constitutionality (because of judicial restraint); and Congress should defer to the Supreme Court's assessment of constitutionality (because "the Supreme Court is the ultimate authority on the Constitution"). So NO ONE SHOULD ACTUALLY INTERPRET THE CONSTITUTION! This is current American constitutional "law" in a nutshell.

I kid you not.

[PS: Any academic reader who reads the above as claiming that the "real" Constitution is the written one because it says it is "the Constitution" should reread the portion about Justice Sotomayor's confirmation testimony.]