The Living Constitution

Laurence Tribe writes in today's New York Times regarding the health care law:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut.

Quite so; but what Tribe forgets is that the constitution is a living document. The constitution's meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe's interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.


What nonsense. Words either mean things or they don't. If the Constitution is a living document then it is a meaningless document.

The commerce clause never meant what the New Deal-era court twisted it to mean. We don't need its meaning to evolve, we need it to return.

I think Alex needs to go back to law school.

Isn't the health care mandate constitutional even before a pre-new deal court?

This is not the NRA.

Setting out to prove Poe's Law, Alex?

We may have a living constitution, but not according to the five justices who will vote against the mandate. Or certainly not to Justice Scalia who ruled that regulating medical marijuana grown in your own home is interstate commerce, but will certainly decide that healthcare is not.

"Quite so; but what Tribe forgets is that the constitution is a living document."

Very witty. Maybe even sardonic.

Very nicely done!

Tribe just continues to demonstrate why he has absolutely no qualities that you'd want in a jurist. There's a difference between an advocate for a particular social agenda and being a justice of the Supreme Court.

Tribe, and many of his tribe, have never quite understood this point.

Thus they recklessly risk totalitarianism.

Hello, people. I'm pretty sure Alex is being snarky. In almost any other context, Tribe would argue that yes, the Constitution is a "living" document. In this context, Tribe's conclusion is undermined if this is true.

Okay sure but that's just a way of saying that higher court judges can make whatever ruling they feel like... I don't get what point you're making except that you (it would seem) oppose the mandate, and you're glad that judges have the arbitrary power to side with you against the legislature.

"The constitution's meaning is not fixed by the New Deal"

That's well and good, but if we're going to overturn decades of precedent to significantly redefine our interpretation of the Constitution, we should at least acknowledge that's what we're doing, rather than pretend that these decisions grow out of some true meaning that has secretly existed since 1787.

Of course, those of you who are arguing against the living constitution seem to be under the laughable impression that originalism is an objective philosophy, instead of an equally subjective approach with a different name.

Todd nailed it. As did Tribe.

If you want a more informed discussion, go to the Constitutional Law Profs Blog:

This is well within commerce clause jurisprudence, particularly when the SCt has held that the commerce clause can reach punishment for a non-event--failing to register as a sex offender--as they have ruled in the past. If you fail to purchase insurance, you pay a fine or tax. Or, you can think of it this way: I don't have to fully pay for your decision not to purchase healthcare insurance.

Nice one, Alex, nice one.

I find it hilarious that it is the individual mandate that is the supposed problem. We are to believe that the everything is ok but that; that the right to impose a tax for not getting insurance is something that belongs to the state of Virginia and not to the federal government. The reference to the living constitution is pretty funny, but I think Tribe would argue the obvious: that commerce amongst the several states is even more integrated than in the age of steel and iron, that state lines are more and more irrelevant to commerce, simply lines where some other entity can seek some rent to maintain its operations, and hence relevance. Is there anything more anachronistic in this country than a state government?

If the constitution is not living and only means what it meant in 1776 then it needs to be thrown out. Do we even dare to assume we can place ourselves in the shoes of the writers of the document with their world view and pass judgment on the modern world. That is beyond hubris, it is insane. Who could be sure that all the ratifiers had the exact same understanding of the articles and amendments. What does unreasonable mean now and then and who determines unreasonable, "cruel and unusual" had a very different meaning that has evolved over time. The constitution is as living as the language which changes over time. Gay used to mean one thing, now another.

The best argument is that all the language should be evaluated by the collective writers understanding of John Locke and common law at the time.

The Constitution "lives" by the application of it's original intent to novel concepts and through the amendment process. It does not "live" through interpreting it to justify whatever the hell you think it wants to mean, today.

The fundamental principles of the Constitution were limited government with powers specifically prescribed by articles and amendments, and individual liberty including the protection of private property rights.

The Commerce clause does not give government a blank check to pass any law it chooses with respect to commerce. The Ninth Amendment makes it crystal clear that people have rights which are not enumerated in the Constitution. The Tenth Amendment makes it crystal clear that if we don't specifically give a power to the federal government, it doesn't have that power.

This case is open and shut: the federal government has NO POWER t force anyone to buy anything, and individuals have the RIGHT to determine whether they will buy a service or not.

If human beings had the power of the Vulcan mind meld, then we wouldn't need to write things down. We wouldn't need a written Constitution as the founders could have simply passed down their intentions in the form of raw consciousness. Unfortunately, we are humans; therefore we have a system of courts whose express purpose is to allow citizens to seek redress against laws they see as unjust and unconstitutional.

This notion that precedent ought to be the ultimate arbiter is pretty silly. It's like saying we don't need a presidential election in 2012 cause we just had one in 2008. Courts hear cases; that's their reason for being. By Tribe's argument the constitutionality of separate but equal should have been rendered an "open and shut" case by Plessy v. Ferguson and a hundred or so years of precedent going back to Dred Scott. Good thing the Warren court didn't see it that way.

The far right conservatives have been trying to undermine the Incorporation Doctrine for the entire new conservative era. Any case they can get to chip away at the federal government's ability to impose policy on the states bolsters their other arguments (abortion rights, woman's rights, gay marriage recognition, and medicaid) is welcome.

Andrew on Andrew: If the constitution allows everything, then let's just save a tree and bin it.

Also, whether or not I buy the limited type of monopoly insurance you offer me does not affect interstate commerce, not even in the overbroad definition of it, unless your objective is to bin The Constitution and rape proportion to do it. One of the problems was that insurance was regulated by the states. So, you have to nationalize it in order to argue that my not doing what you want affects everyone else in the whole country, as in "you are affecting us all because we decided this affects all of us and by not being part of all of us, we are affected."

As for jurisprudence, if patriotism is the last refuge of a scoundrel, precedence is the second to last.

How can you use the interstate commerce clause when health insurance is strictly non-interstate.
Why are rates by the same insurance company different state by state? how come you can have Romney Care in MA?

The only interstate commerce by health insurance is Medicare/Medicaid which is a federal program. I don't see how interstate commerce clause could apply here.

And if I could manage to spell "unprecedented," I might be more persuasive.


Very nice comeback

"If the constitution is not living and only means what it meant in 1776 then it needs to be thrown out." 1776? Wow. The historical ignorance is stunning. Sort of an Ezra Klein "it's really old you know like a 100 years or something so we can't you know, really, you know, expect to be able to, you know, know what it means. I mean they didn't even have iphones back then."

I LOLed. Well played, Sir.

Everyone above who posted about healthcare is an idiot. That's not even a failure of Poe's Law, but of basic reading for comprehension. I thought MR attracted an educated crowd, but perhaps it's just a credentialed one.

I consider half the above comments as more evidence for my theory that most people check their prefrontal cortex at the door when the political topic du jour is raised. Lizard brain FTW! Fight or flight!

Bah. And you call yourselves sapients.

We should put a lot of faith in The New Deal era of jurisprudence because Roosevelt didn't actually succeed in stacking the court.

Oh shit, did I just type that?

Moderator please delete before Cass Sunstein sees it.

"But in what case has the Commerce clause ever been used to regulate consumers of a product?"

What, really? The federal government uses the CC to regulate consumers all the time -- just looking at federal criminal law you've got regulations on consumers purchasing all kinds of weapons (eg. penalizing people who acquire biological weapons, penalizing people who buy a gun off of the internet without going through an FFL holder, etc), bans and restrictions on buying drugs and drugs paraphernalia (eg. penalizing people who purchase prescription drugs without a prescription), bans on knowingly purchasing property furnished to members of the military, bans on fraudulently purchasing something through the mails, etc. And that is just the criminal law! The government flatly bans what you can buy or regulates how you have to buy it all the time.

The bad argument you want to be making is, "when has the CC ever been used to regulate inactivity?"

"A federal government that increasingly resembles a medieval king, with limitless powers over the individual. Along with that, the concepts of "citizenship", as we are subjects or more accurately feudal serfs now."

Federalism isn't about how much power government has, it is about which government has the power. Prior to the fourteenth amendment, state governments had far more power over the individual, under the constitution, than the current federal government does. Going from a system where states have general police power to a system where states and the federal government have general police power (more or less) doesn't change what government can do to you, just which government can do it to you.

Even Marbury involved some interpretive legerdemain.

Dear Mr Tabarrok,

Is it quite fair to tease your countrymen by posting the sort of light, wry humour that they are notorious for failing to understand?

Yours faithfully,

Ernest Plonquer

I agree that the Constitution is a living document. But it gets its life from Article V - Amendment, that way it evolves with a democratic process, not necessarily with language, ideologies and power grabs.

I have yet to hear a compelling argument for why we would want to the Constitution to evolve outside of the process laid out in Article V.

I don't think you quite get it.

It is good that the Constitution lives. And one reason is because an expansive interpretation of the commerce cause is more appropriate (has greater utility) in modern times than a couple centuries ago.

What about the direction of social progress, with increased integration, interdependence, and so on, would make anyone think the proper contextual interpretation is to go the other way?

Bartman, I've never heard of that GOP proposal until a few days ago.

Good to see that a really stupid idea dies that quickly in at least one party.

"If you can force people to buy health care or face a penalty you can force them to buy big macs or face a penalty."

State governments can pretty clearly force you to buy food or face a penalty, provided they do it in a nondiscriminatory way and have a rational basis for doing so (IE, we are making people buy greens because they are good for you, people who can't afford it get a subsidy to buy their veggies). Why is it clearly awful for the federal government to have the same power, a power state governments haven't abused after over 200 years of general police power?

In general I think the real question is "does this regulate interstate commerce or is it necessary to regulate interstate commerce," not, "would letting congress do this give them the option to do something incredibly stupid and unlikely." After all, the fact that a power could be used to do something silly normally isn't good evidence that congress doesn't have that power. The government could draft you and force you to fight an incredibly stupid war -- go invade Canada because we don't like hockey! -- that doesn't mean the draft is unconstitutional. Long story short, congress's powers are limited in order to guarantee a limited government, not a good government, evidence that a power could be used to do something dumb is not evidence congress doesn't have the power.

If the complaint is "this makes federal power unlimited and therefor upsets federalism," that pretty clearly isn't true. The limits on the commerce clause the courts annunciated in Raich and Lopez still stand, even if the government can tax people who don't purchase something. It is difficult to see, in other words, how upholding this law would give congress the ability to mandate civil penalties for wife beating, criminalize possessing a gun near a school, or otherwise regulate non-economic activity. Since neither side is advancing an interpretation of the commerce clause that gives congress unlimited power, it puts the cart before the horse to claim that this disrupts our federalist system of government. Again, first you need to ask, "does this law regulate interstate commerce or is it necessary to regulate interstate commerce?" If the answer is yes, and if answering yes doesn't leave federal power unlimited, what is the problem for federalists?

If the complaint is, "this makes federal power bigger than I have arbitrarily decided the founders thought it should be," great. Don't expect to convince anyone with that. For one thing, many people don't think the vague wishes of the founders should control ambiguous (and certainly not clear) constitutional language, for a lot of reasons (chief among them: the constitution is a compromise document and it is really hard to tease out some clear intent everyone would have ascribed to any given passage). For another, the founders didn't have any problem with the government being able to make you buy things: these are the guys who passed a law making everyone buy a rifle. The idea that they would be fine with doing that under the power letting them arm the militia but would screech and melt if someone tried something similar under the commerce clause power strikes me as bizarre.

So basically horror stories about what this would let congress do are irrelevant. The question is whether this regulates interstate commerce or is necessary to regulate interstate commerce. If it is, and if that gives congress the power to make you buy a big mac, great. Congress now has the power to make you buy a big mac.

Kinda funny how few people noticed Alex's sarcasm...

wophugus, If the federal government can literally make any law it pleases, then the Constitution is a nullity and we might as well discard it. Clearly it cannot be that the interstate commerce clause allows the federal government to do anything it wants, because if that was true there would be no point to that clause or to the entire Constitution. The federal government has enumerated powers. State governments have plenary power. That is the difference.

"Why is it clearly awful for the federal government to have the same power, a power state governments haven't abused after over 200 years of general police power?"

The 10th Amendment wophugus, have you heard of it?

The Federal Government was never supposed to be (and should not be) a government of unlimited jurisdiction. You want universal healthcare? Fine. Do it at the State level, like Massachusetts and Tennessee did. America is big enough, and diverse enough, that there simply cannot be (let alone should not be) "one best answer" for all 300,000,000 of us on many issues.

"I want to live in an America where the Democratic Party can dictate everything everybody does, because life would just be so much better."

You really should bother trying to understand your opponents and their arguments sometime. I know intellectual honesty can be difficult, trying, even, at times, but it's well worth it.

Humorous comments (unintentionally): literalist arguing for literalism. Alex, I got that your tongue was planted firmly in cheek and loved the turnabout. I'm sure I'll have occasion to use it soon with liberal friends.

This is the latest battle in a war between two opposing groups, one that believes that the Constitution is a document to limit government power and the other looking to ignore the Constitution in order to accomplish what it wants. The application of the general principles in the Constitution can be difficult at times, but that is always the case with a limited set of principles and an infinite number of cases. The first group wants only those ends arrived at by legitimate (i.e., Constitutional) means, whereas the second group wants to bend the means to fit the end.

I guess the question is this- if the mandate is tossed as an improper use of the commerce clause, will this be cited by Tribe in the future as a just precedent? If not, then the hypocrisy label will fit snugly. I am curious, however, what was Tribe's position prior to the Gonzales v Raich decision?

"To run around yelling about why the health care bill is a bad IDEA economically completely misses the point. It's not just an idea, it's a reality on the ground."

No it's not. That is some people trying to force the one option you want. Also known as a rhetorical grease job.

The government forces treatment. The government causes the free riding. Some people want to claim that the only solution is to now charge everyone who could potentially be a free rider. In reality there are many options. One perfectly reasonable alternative is to not force treatment. Another is to require payment from those agreeing to treatment. Another is HSA/High Deductible.

"The Federal Government was never supposed to be (and should not be) a government of unlimited jurisdiction."

"wophugus, If the federal government can literally make any law it pleases, then the Constitution is a nullity and we might as well discard it."

As I said in my comment, even if the government has the power to make you buy a big mac, that does not mean the government has the power to do anything. Giving the government the power to tax people who don't buy something under the commerce clause (never-mind the taxing and spending clause) does not give the government the power to regulate the sort of noneconomic activity identified in Lopez and Morrison (I said "raich" instead of morrison in my last post, which is the exact opposite of correct).

In other words, even if we accept the argument that holding this law to be constitutional lets you force people to buy food, no one anywhere has made the argument that holding this law to be constitutional lets the federal government do anything. The government can still not regulate noneconomic activity, like possessing a gun in a school zone or wife beating.

Given that both sides leave the power of the government under the commerce clause limited, you can't make a case that this facially flies in the face of federalism. You've got to get down to the nitty-gritty and ask yourself "is the government regulating interstate commerce or is this necessary and proper for the government to regulate interstate commerce." Obviously a lot of people here think the answer to both those questions is "no," which is fine, but they should reach that "no" without dragging federalism into the discussion. Federalism tells you the power of the congress should be limited, but only a close reading of the section 8 powers tells you *how* limited. Since both sides are inarguably advocating positions that leave the power of congress limited, the only way to pick a winner is a close reading of Article I.

"What's most amusing is that people who supported (or, at least, were silent on) the Individual Mandate when it was being pushed by neocon policy shops like AEI, or when it was being implemented by Republican politicians like Romney suddenly see it as a Great Threat to everything fundamentally American when implemented by Obama."

Really? I know people that will never vote for Romney based solely on Romneycare-which while not involving federal constitutional issues-is aan abhorrent piece of crap. There are also those that see the individual mandate as a permissable requirement if enacted by states-but I call it for what it is-tyranny.

"Even Marbury involved some interpretive legerdemain."

No, Marbury was the Queen Mother of "interpretitive legerdemain".

Justice Stevens: was appointed by a Republican, and he is no longer on the Court.

The Founding States made the Constitution to be amendable, as opposed to "living," aka being subjectively interpreted by activist justices. But as a consequence of FDR nominating activist justices in the 30s and 40s to pervert the Constitution to give the green light to his socialist agenda, you'll never hear the current generation federal lawmakers, the Oval Office or the USSC admit the existence of Article V of the Constitution. For example, corrupt federal lawmakers wrongly ignored that Article V requires Congress to first petition the states for specific grants of power via constitutional amendment before establishing things like Obamacare.

The bill simply catches up to the reality of receiving payment for coverage already granted.

So if people go to the ER and can't pay, are we going to put them in debtor's prison?

Obviously not. But unless you think there are a lot of people out there who are wealthy, could buy cheap insurance but don't, and have a history of using the ER and somehow escaping paying for it, you aren't really going to extract much revenue from them.

Every system has free loaders. If you just mix up the words a bit, you would see one party screaming about illegal immigrants stealing our social services, while the other group says that trying to ferret out the small amounts of abuse aren't worth it. Except that the liberals and conservatives have swapped camps about catching those free loaders because of the specific goals in mind.

It seems we are going through things in the most complicated way possible.

"Yes, words mean something, but every time a new issue comes up, it requires judgement to sort out what is or isn't in synch with the constitution." Nope, sorry, that is not the concern of all of us who consider the Constitution to be a founding document of these united States and not subject to piecemeal destruction under guise of 'keeping up with the times'. Here's a simple example to disprove your argument: the Second Amendment speaks clearly and unequivocally, and has no need to be 'interpreted' for our times, and yet look at the problems being caused by the fans of a 'living' (aka - meaningless and defunct) Constitution.

Charles Fried did support Obama (against McCain), and he also was one of the strongest supporters of Justice Alito in his nomination to the Supreme Court. Some men, even some conservatives, can have a nuanced and well-reasoned set of beliefs that don't always conform to the CATO Institute or Heritage Foundation party line. Some people can think for themselves. Prof. Fried is what anyone would consider a conservative, albeit one who has clearly read, thought about, and maybe even more importantly taught about the Constitution for many years.

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."


"What, really? The federal government uses the CC to regulate consumers all the time -- just looking at federal criminal law you've got regulations on consumers purchasing ..."

Yep: Criminal law can criminalize purchasing, or even possessing. What it can't do is criminalize not purchasing, unless combined with some other act.

"If the federal government can say that I have to pay 100% of my income in taxes or buy a big mac, I'm damn well going to buy a big mac. Substitute any activity for big mac, and now the government can do anything. Is this so complicated? I don't know the precedent you are citing, but the logic of your argument is clear enough."

My point is that you *can't* substitute any activity for "buying a big mac," even going by the logic of Judge Vinson. According to Vinson (the second guy to strike down the affordable care act, the one who declared the whole thing invalid), to uphold this law you have to agree that the government can tax people who don't purchase a product but who will almost certainly participate in the market for that product at some point. The government's argument is that because they *will* buy healthcare at some point, their decision to buy it now or later is, by necessity, a commercial decision capable of being regulated. That bothers Judge Vinson because it means, in his eyes, that the government could force you to buy any necessity of life, including food -- after all, we all participate in the food market, so can the government penalize my "commercial decision" to buy food later rather than now? The government says "no, no, food is different;" they have some arguments why, whatever.

But both sides agree that there are still things the government can't do, even if Vinson upholds the law. For example, can the government make you buy something if almost all americans don't participate in the market at some point anyway? What if instead of food or healthcare the government taxes everyone who doesn't buy golf clubs? Can the solicitor general argue that not buying golf clubs *at all* is a commercial decision the same way putting off buying healthcare is? Pretty much everyone involved in the case says the government can't do that. But let's say that judge vinson gets overturned, and when the 11th circuit overturns him it says "Oh and by the way, we think the government can tax people as punishment for not buying *anything*, even golf clubs." Are there any limits to federal power under the commerce clause now? Well, what if the government doesn't want to regulate how you buy stuff or what you buy, it wants to regulate something else, like what you do. Can the government tax you for engaging in some totally non commercial activity, like hitting your wife or carrying a gun in a school zone? Two Supreme Court cases say it can't, drawing a distinction between regulating "commercial" and "noncommercial" stuff (specifically the word used is "commercial activity." This case will decide how much bite there is to the word "activity," previously the emphasis has always been on the "commercial" bit). It is pretty hard to imagine how this case gives the court an opportunity to overturn that precedent. So even if the supreme court makes the most crazy, far reaching, federal power expanding decision possible in upholding the federal healthcare law, saying, "the government can tax you into buying anything. Eat it," there is no reason to think the "commercial" vs. "Noncommercial" distinction would be upset by this law. The end result would be that the government can tax you into buying anything, but it can't tax you into *doing* anything. And to reiterate, no one on either side is *actually* arguing even that upholding this law even means the government can tax you into buying *anything*. The worst characterization the people overturning the law have come up with is "they can force you to buy the necessities of life, like food," and the government has argued, "no, healthcare is different from food and other necessities for some reasons (they have a three part test and I can't remember if food fails one or two parts, or even what the three parts are).

So what is at stake in this case is not "are we going to have a limited federal government or not." We are, no matter what, at least in theory (and not even just in theory, really. Again, the supreme court struck down laws the government tried to justify under the commerce clause fairly recently (Lopez and Morrison), in 1995 and 2000, respectively) and at least for now. You can say "this law exceeds the power granted to congress under the commerce, necessary and proper, and taxing and spending clauses, so it is just another example of congress trying to go too far and should be overturned." I disagree with that, but I see the argument for it. But you can't say "upholding this law removes all constraints on government and therefor upsets our federalist system." It doesn't.

"Yep: Criminal law can criminalize purchasing, or even possessing. What it can't do is criminalize not purchasing, unless combined with some other act."

Yeah, that was my point. I was disputing the claim that the commerce clause doesn't let you regulate the consumers of products -- even the old-school pre-new-deal era court thought it did (the court upheld, in the early 1900's, a federal law making it illegal to buy a lottery ticket across state lines) -- and suggesting that the better argument is that the commerce clause doesn't let you regulate "inactivity." I don't buy the inactivity/activity distinction, but it makes a lot more sense to me than a counsumer/producer distinction.

I really do apologize unreservedly for attempting to bring up some actual legal realities (historical, textual, and practical) on an ostensible economics and cultural blog. I brought up Prof. Fried as an example (one of many) of the overwhelming professional legal opposition to the ill-considered opinion of Judge Vinson.

And, of course, there are many examples of the federal govt. (and state/local govts.) regulating the inactivity of U.S. citizens. How about the draft? Selective service? Jury duty? Just to name a few. There may have been certain defined exceptions, but Americans by and large could not be pacifists and cannot refuse to serve on juries. Congress certainly has the power to ban "inaction", so I have no idea what is so special about the commerce clause.

Economic inactivity is no different than pacifism or shirking jury duty.

Hate the law if you want, but don't expect any help from the courts ultimately. Judges have read the Constitution and case law, and it is all on the side of the constitutionality of the an individual health care mandate properly passed by Cong. and signed by the Pres., supported by both the Commerce and Necessary and Proper Clauses.

Of course there is a solution to a law you don't like, and even one you feel is evil and Un-American: vote for politicians who will get a majority in all branches of Cong. and the Pres. and then repeal it. That is also perfectly Constitutional.

"The principal subject of this thread is not the proper political classification of Prof. Fried's jurisprudential views."

Then what is the obsession? I get it - he's not conservative enough for you. Point made. Congratulations. He's a respected legal scholar/philosopher who holds a bunch of views that everyone but you think makes him conservative, very conservative. A few of his views (Patriot Act, ACA) are disqualifications from the country club in your opinion. Grand. Again, I get it. He shouldn't expect a Christmas card. If I see him I'll pass along the message.

I shall declare victory and depart the field to you and the considered legal opinion you failed to mention. (Vinson, I guess).

Johnson nails it on the head.

If you can force people to buy health care or face a penalty you can force them to buy big macs or face a penalty. SS is not the same because A) nobody is buying anything and the trust fund doesn't exist & B) The federal government, not a private seller, provides it.

Not a right analogy. Say if you are involved in a terrible accident, a big mac will not come into picture. But any good developed society should provide immediate medial support (brain surgery or just provide blood to account for the loss) before even you could open your mouth to say your name, let alone show insurance card.

No developed society should let people just die in an emergency. If govt (private hospital will not care unless they know they can get paid by govt for emergency care) has to provide such care, it can and must mandate some basic insurance.

Yes, I would also prefer rebate as opposed to a penalty though.

Wow. Is Todd as dumb as he sounds? Sorry but the draft is obviously fully within Congress's authority to raise and army and navy and oh that whole war thing. Jury duty. We got this thing called the judicial branch which under Article III requires a trial by jury in all criminal cases. Try reading the Constitution before spouting off about things you obviously don't know anything about. Your appeal to authority is pathetic which just further emphasizes that you have no clue what you're talking about.

"Abortion (killing an organism with the genetic characteristics of a human) will affect aggregate demand (interstate commerce) just like a farmer growing crops for consumption at home."

Actually, to the extent congress does regulate abortion (IE, by banning partial birth abortions), the commerce clause is where that power is lodged. So you are correct, it's just that the due process rights of the mother complicate things.

Very nicely done Alex. An admirable rhetorical exercise indeed; turning the progressive's usual dodge, invoking the notion of a "living constitution" as a pretext to ignoring the intent of the document as written, ratified, and amended over the years, back onto them is at once witty, clever, and effective.

At least, judging by all of the grumpy comments where the commentor's head is exploding.

In fact, all that's missing from your post is the final puctuation; "Checkmate Suckers!"

My Regards

Actually, it's the pro-choice crowd that's going about it the wrong way. Justice Thomas (and possibly also Scalia, but after Raich, one can't be sure about him) would plausibly have ruled the other way if Carhart's main argument had been that the federal partial birth abortion ban overreached the commerce clause. But that argument is alien to left-leaning jurisprudence, and was not advanced.

"Some men, even some conservatives, can have a nuanced and well-reasoned set of beliefs that don't always conform to the CATO Institute or Heritage Foundation party line. Some people can think for themselves."

Disordered and incoherent is not nuanced.

Given that a great many leftist arguments start with the declaration "I feel", that might explain why you feel that people who think through an argument, and don't exhibit the signs of emotion aren't thinking. Trouble is, its you and your ilk that are inattentive to the function of the cerebellum.

Feeling isn't thinking. Hint: If something makes you elated, lachrymose or angry, its a feeling, not a thought.

Another hint: what you experienced that first Tuesday in November 2008 was a feeling, feelings cause you to sway in unison, thoughts would have made you anxious and you'd have realized the new President wasn't a Messiah and lacked the experience, temperament and restraint for a job that requires all three attributes in great quantities. You might want to remember where things that are synthesized in the viscera enter the world and why we promptly and privately dispose of them.

Then again, if you were thinking, you'd know CATO is a libertarian, not conservative organization.

As the veeeeeerrrrrryyyy conservative legal scholar Charles Fried intimated to Congress last week

Not that Fried's place on the ideological spectrum matters to the merits of the arguments, but there is no way Charles Fried is a "veeeeeerrrrrryyyy conservative" legal scholar, let alone a "very conservative" one. And that opinion is based solely on his scholarship and teaching, not even on his support of Obama's presidential run. Such a glaring misstatement undermines the substance of your argument.

Touche', Alex. Irony's so thick you could cut it with a knife! (For the record, I think the correct interpretation of the commerce clause is the one proposed by Epstein and Barnett, and almost everyone else with common sense.)

I'd also add that, the greatest post-WWII divergence from the original intent of the Constitution and the founders has to be the ability of the Executive to conduct wars without a declaration of war by the Congress.

"I'd also add that, the greatest post-WWII divergence from the original intent of the Constitution and the founders has to be the ability of the Executive to conduct wars without a declaration of war by the Congress."

The very first case dealing with this was Bas v. Tingy in 1800. In a seriatim opinion, Justice Washington acknowledged that the United States could be thrown into hostilities, and indeed a kind of war he called "imperfect war," without a congressional deceleration of war. He didn't seem to think anything was unconstitutional about that. All the justices acknowledged that we were at war with France in a real enough sense for her vessels to be those of the "enemy," regardless of the fact that congress hadn't declared war.

Point being, this isn't a post WWII thing; it's been going on since the quasi-war with France.

Aeterritatis, I am a lawyer, have argued commerce clause issues, and Todd has described the constitutional issues accurately. He has not said anything that is misleading.

Cliff Said:

Clearly it cannot be that the interstate commerce clause allows the federal government to do anything it wants, because if that was true there would be no point to that clause or to the entire Constitution.

I believe it was exactly that logic that one of the federal judges used to declare the mandate unconstitutional. He said (paraphrasing) that if the commerce clause can be used to compel someone to engage in commerce who otherwise wouldn't be engaged, then exactly what limits does it have? Since the whole point to writing the clause was to set out the limits of government regulatory power, if this application of it basically opens the door to any goverment activity whatsoever, it must be in conflict with the intent of the commerce clause.

Can the federal government force you to work for a certain employer? Under this interpretation of the Commerce Clause, it would seem so. Maybe the government has determined that the employer needs more people, and can't find them. Maybe this employer is a health care provider. So drafting people to work there is for the common good, and it affects interstate commerce, so...

Under this expansive definition of the commerce clause, what government regulatory activity would be impermissable? Where is the line drawn now? If you can't find that line, it would suggest that this definition of commerce clause actually nullifies it, and that would be against the clear intention of the people who drafted it.

Or, in the words of someone recently in the news:

What is government if words have no meaning?

I really enjoy reading your blog as the postings are so simple to read and follow. Outstanding. Please keep it up. Thanks.

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