constitutional law — VOICES for REASON

Now that the Obama administration has asked the Supreme Court to decide the fate of Obamacare, conservatives are again waxing enthusiastic about the case’s significance. According to Human Events, for example, “The case before the Supreme Court is our last line of legal defense against a fundamental reconstitution of the relationship between American citizens and their government.”

Last month, in a Daily Caller op-ed, I voiced my opinion that this ship has already sailed—in other words, there has already been a “fundamental reconstitution of the relationship between American citizens and their government,” and the pending Obamacare litigation doesn’t really challenge that consensus:

The only argument with any chance of success in today’s Supreme Court starts by admitting that Congress has authority to control every single economic “activity” known to mankind—farming, building, manufacturing, transporting, storing, insuring, selling, buying, leasing, practicing medicine, operating a hospital, you name it—but then denies any authority to invade the sacred right of “inactivity.”

It’s hard to blame the plaintiffs for relying on this cooked-up technicality. Faced with the Supreme Court’s long-standing and intransigent refusal to uphold the American ideal of individual rights, they really had two options: do nothing, and watch while Obamacare completes the ruin of private health insurance—or sue to overturn the statute, but without daring to challenge Congress’s stranglehold over the economy.

Perhaps in the future, a new generation of Supreme Court justices will be open to interpreting the Commerce Clause objectively. In the meantime, sadly, the Obamacare litigation will do nothing to vindicate the founding fathers’ vision of a government whose authority is limited to protecting individual rights.

Even Randy Barnett, the Georgetown law professor who’s been the intellectual architect of the Obamacare challenges, believes it’s important not to overstate the litigation’s importance. In a recent radio interview, Barnett responded to his host’s comment that a Supreme Court decision striking down Obamacare would mean Congress’s power is “significantly limited.” Barnett answered:

I totally disagree that this is going to limit Congress’ power. I wish it would, Hugh. I wish a victory here would roll back Congress’ power, but it won’t. It’ll just basically say that a power that they’ve gone 230 years without ever exercising before, which is the power to make everybody do business with a private company, that power they’ve never exercised before, they’re not going to be able to exercise in the future. That’s all it’s going to say. And so it’s going to be a very important principle to establish that there still are limits. And if we lose this case, it’s going to be really, really bad. But if we win the case, it’s going to basically preserve the status quo, which is not where I think it ought to be. I think we ought to roll back federal power, but this case is not the case to roll back federal power. This is the case to say this far and no farther.

In contrast to some conservatives, then, Barnett is not under a starry-eyed impression that a favorable Supreme Court opinion will “roll back federal power.” This is a good perspective to keep in mind as the case goes forward.

Image: WikiMedia Commons

Over at The Daily Caller they have my take on the Obamacare litigation. Yes, it would be a good thing to stop Obamacare in the courts. But the victory, if it comes, will stop far short of restoring the Founding Fathers’ vision of political freedom for every American to engage in business and earn a living. In the article, I put it this way:

In desperation, their lawyers tugged on a tiny thread in the vast fabric of Commerce Clause jurisprudence. It turns out that the Court has consistently affirmed Congress’s power to control economic “activity”—but not “inactivity.” Therefore, the plaintiffs argue, Congress surely went too far by enacting the individual mandate, since the decision not to buy insurance is mere “inactivity.”

Let me translate: The only argument with any chance of success in today’s Supreme Court starts by admitting that Congress has authority to control every single economic “activity” known to mankind—farming, building, manufacturing, transporting, storing, insuring, selling, buying, leasing, practicing medicine, operating a hospital, you name it—but then denies any authority to invade the sacred right of “inactivity.”

It’s hard to blame the plaintiffs for relying on this cooked-up technicality. Faced with the Supreme Court’s long-standing and intransigent refusal to uphold the American ideal of individual rights, they really had two options: do nothing, and watch while Obamacare completes the ruin of private health insurance—or sue to overturn the statute, but without daring to challenge Congress’s stranglehold over the economy.

Perhaps in the future, a new generation of Supreme Court justices will be open to interpreting the Commerce Clause objectively. In the meantime, sadly, the Obamacare litigation will do nothing to vindicate the founding fathers’ vision of a government whose authority is limited to protecting individual rights.

If Americans are going to effectively oppose Big Government laws and regulations, they will have to do more than stand up for the right to sit down. They will have to defend the right to engage in economic activity of every kind—without government permission, and without carte blanche regulation by Congress under the Commerce Clause.

Image: Wikimedia Commons

For several decades now, legal professionals have been debating how best to interpret the Constitution. One school of thought touts the “living Constitution” whose meaning changes over time as new “social realities” arise. Another school of thought, “originalism,” holds that the document means what it was understood to mean when ratified.

Each viewpoint has its detractors. Opponents of the living Constitution argue that it eviscerates the rule of law by granting unelected judges the power to legislate. Opponents of originalism, on the other hand, object to the idea that twenty-first century Americans must be shackled to the erroneous, outdated knowledge of men who lived hundreds of years ago.

What has been missing from this debate is any suggestion of a workable theory that avoids both types of objection. So far, no one has offered a method by which judges can objectively adhere to the drafters’ original words, while simultaneously taking account of all the moral and scientific progress that has occurred since the Constitution and its various amendments were ratified.

That situation may be improving, however, thanks to the efforts of a professor of philosophy at the University of Texas, Tara Smith. In an article for the journal Constitutional Commentary, Dr. Smith offers a philosopher’s perspective on the debate and points the way toward a new theory that promises to resolve the dispute permanently.

Originalism, she writes, is an “impressively resilient doctrine” that is ultimately untenable. Why? Because it assumes that “words lack objective meaning,” and therefore the best judges can do is discover “the historical fact of what the understanding of particular words was at the time of the law’s enactment.”

Smith trains a philosophical spotlight on this originalist argument, bringing to bear the insights of epistemology, the science of knowledge. Originalism is mistaken, she asserts, in supposing that words lack objective meaning. “Concepts are objective,” she states—a big, controversial statement that introduces a lucid discussion of Ayn Rand’s Objectivist epistemology and how it can be applied to the problem of interpreting legal language.

Just to mention one of many examples, she discusses why the concept “religion” in the First Amendment, objectively interpreted, includes Mormonism—even though that sect had not been conceived when the First Amendment was ratified in 1791. Although other philosophers and legal scholars have discussed epistemology with regard to such questions, Smith’s work stands out by virtue of its unique application of Rand’s theory. Smith’s overarching theme is fully stated in her article’s title: “Originalism’s Misplaced Fidelity: “Original” Meaning Is Not Objective.”

Smith makes no claim to have articulated a full theory of legal interpretation, characterizing her article “only a step in that direction.” Even so, her article is packed with far more insights than a single blog post could possibly indicate without verging upon the facile. Those with a serious interest in constitutional interpretation should lay their hands on Smith’s article and read it thoroughly.

Image: Wikimedia Commons

The Senate Judiciary Committee has approved the nomination of Elena Kagan to the Supreme Court. In a just-published op-ed in the Christian Science Monitor, my colleague Tom Bowden argues that Kagan does not understand the Constitution–the document which, if she confirmed by the Senate, Kagan will have to swear to uphold.

Alarmingly, Kagan’s testimony before the Senate Judiciary Committee shows that she rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights. Instead, she adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.

As a matter of historical fact, the Founding Fathers wrote the Constitution for a certain purpose. They wanted a government that would respect and protect the individual’s rights to life, liberty, property, and the pursuit of happiness. Aside from certain contradictions (the worst of which, toleration of slavery, required a bloody civil war to expunge), the Constitution is dedicated to protecting the individual from society by means of a limited government. The Supreme Court cannot objectively interpret the document’s language apart from this essential purpose.

Regrettably, however, too many of today’s judges reject this approach to constitutional interpretation.

Read the whole thing.

“On Jan. 21, poor Justice Holmes must have turned in his grave.”

So writes Mimi Marziani in the National Law Journal, lamenting the Supreme Court’s decision in Citizens United v. FEC, issued on Jan. 21, 2010. That’s the controversial case holding that corporations have a right to speak out on political issues without being censored.

What’s the connection with Justice Oliver Wendell Holmes, Jr., who died back in 1935? Well, Holmes spent much of his long career arguing against the idea that the U.S. Constitution is a bulwark of liberty, a barrier to governmental infringements on individual rights. So Marziani is right that Holmes, if he were alive today, would have dissented in the Citizens United case—just as he dissented more than a century ago in the case forever associated with his name, Lochner v. New York. (In that 1905 case, the Court struck down a maximum-hours law for bakers.)

In fact, Marziani says, there’s a direct parallel between the two famous cases. Citizens United, she asserts, is “Lochner’s 21st century equivalent.” Why? Because both cases were driven by a conviction that the Constitution should be interpreted where possible to protect people against the awesome power of government to violate their rights. Along with Holmes, Marziani believes that the Constitution is agnostic on the relationship between individuals and the state. Read the rest of this entry »

A new article by Tom Bowden has just been published at The Objective Standard and is freely available online. “Justice Holmes and the Empty Constitution” starts this way:

On April 17, 1905, Justice Oliver Wendell Holmes Jr. issued his dissenting opinion in the case of Lochner v. New York. At a mere 617 words, the dissent was dwarfed by the 9,000 words it took for the Supreme Court’s eight other Justices to present their own opinions. But none of this bothered Holmes, who prided himself on writing concisely. “The vulgar hardly will believe an opinion important unless it is padded like a militia brigadier general,” he once wrote to a friend. “You know my view on that theme. The little snakes are the poisonous ones.”

Of the many “little snakes” that would slither from Justice Holmes’s pen during his thirty years on the Supreme Court, the biting, eloquent dissent in Lochner carried perhaps the most powerful venom.

Read the rest of this entry »