I am pleased that a scholar of Professor Tribe’s distinction should come to the defense of our Constitution.  Yet, as I pointed out in an earlier post, Professor Tribe is of the school of legal jurisprudence which allows the Supreme Court to effectively revise the Constitution to adapt it to changing circumstances.  Professor Seidman’s argument that we must abandon constitutional strictures in order to assure a fresh political conversation is the logical extension of Professor Tribe’s own philosophy.  If the Supreme Court is not obligated to respect the original written Constitution, why should anyone else be?

 The Wall Street Journal and Megyn Kelly have asked Professor Seidman the obvious question: why he did not look to amending the Constitution rather than abandoning it altogether?  He rejected this approach because the amendment process is too “arduous.”  (The link is to a report in the ABA Journal because the Wall Street Journal site is restricted.)  He has a point in that our Constitution is currently the most difficult in the world to amend.  However, if Professor Seidman finds the amendment process too arduous, isn’t the better solution to reform the amendment process to make it less arduous?  A re-invigorated amendment process would provide an orderly method to incorporate the democratic debate Professor Seidman professes to favor without the risks of justifying a free-for-all of constitutional disobedience (“constitutional disobedience” is the name of his forthcoming book).

One suspects though that his critique, which goes back at least to Woodrow Wilson, is really about supplying a rationale for members of the ruling elite like Professor Seidman to disregard aspects of our Constitution which they dislike.  A functioning amendment process might actually let the hoi polloi, such as those nasty Tea Party people or genuine populist progressives, have a voice in our Constitution.  They might even ignore wise members of the law school professoriate like Professor Seidman (and Tribe).  It might even make the first three words of the Constitution (We The People) more than a poetic rhetorical flourish.

First, the argument is not about the merits of allowing persons of the same gender to enter into the legally defined relationship called “marriage.”  In fact, the heart of the argument is that those merits, pro or con, should have no bearing on how the Supreme Court decides the “gay marriage” cases before it this term.  Their place is in the democratic political arena, before a state legislature or in a popular referendum, not in the courts.  To argue that the courts should take such merits into account in deciding that the United States Constitution overrides such democratic decision-making is to place the judiciary above the People, and moves us further down a path toward rule by the elites over rule by our Nation’s citizens.

In his first inaugural address in 1861, Abraham Lincoln spoke of the Supreme Court’s then recent Dred Scott decision, where the Court had thought to resolve sectional conflicts over slavery by upholding the right to own slaves throughout the United States.  If the Supreme Court were allowed to be the final arbiter of the Constitution’s meaning, Lincoln said, and extend its decrees beyond the parties to the specific cases before it, “the people will have ceased, to be their own rulers, having … resigned their government, into the hands of that eminent tribunal.”  How can we call our system of government democratic when five unelected, life-tenured and unaccountable judges can irreversibly change the meaning of our Constitution? 

Now, does this mean that the courts should never enforce the Constitution, or act to protect citizens’ constitutional rights?  Of course not.  The question is on what basis the courts decide such cases.  There are two contending schools of judicial interpretation today on this question.  One holds that the Constitution should be seen as a fluid, “living” document for which the meaning can shift with the times.  Thus, if society comes to accept gay marriage, the old language of the Constitution should be interpreted to require the recognition of gay marriage even though such an outcome would have been inconceivable to the original authors of that constitutional language.  Now this philosophy is a lovely sentiment.  Who wants a “dead” Constitution? 

The problem comes in the implementation.  Federal judges are appointed, not elected, and serve for life.  It is true that they must be appointed by the President and approved by the Senate, but that happens only once.  After that, in the case of Supreme Court justices there is no appeal from their decisions, no reversal of their decisions (unless they do it themselves), and no limit to their power to read their personal legal, political, economic or social views into the language of our 225 year old Constitution.  When the Supreme Court is allowed to assume the task of adjusting the Constitution, rule by the people is negated, and replaced by the rule of a few elite lawyers.

The second school of interpretation holds that the courts are not superior to the people or their elected representatives.  This school contends that the Constitution says what it means and means what it says.  In order to prevent judges from twisting constitutional language to read their own personal legal, political, economic or social views into it, the language of the Constitution and other laws must be considered to have their meaning fixed at the time the language was first enacted.  If a law is deemed to be inappropriate for the times, the way to change it is to democratically have the relevant legislature change the law.  If the legislature will not change the law, the people can change the legislators at regular elections and in many states can also change laws by popular referenda.  It is not the judiciary’s place to change a law of which a judge or judges disapprove.  This approach, sometimes called “originalism,” preserves rule by the people and secures it against usurpation by the judiciary.

This argument runs up against a difficulty, however, when one comes to the Constitution.  One can not change the Constitution by a simple vote in a legislature or a referendum.  How does one adjust the Constitution for changing times?  The Framers’ solution was clear.  It was not to allow the Supreme Court to rewrite the Constitution to the justices’ liking.  The Framers’ solution was Article Five, the amendment process.  As Lincoln further explained in his first inaugural, our “country, with its institutions, belongs to the people who inhabit it.  Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it.”  The recent Steven Spielberg movie Lincoln dramatically portrays what Lincoln went through to follow his own precepts and initiate a constitutional amendment to reverse the Supreme Court’s Dred Scott decision and abolish slavery.

Unfortunately, today the amendment process set forth in the United States Constitution is moribund.  At the time the Constitution was adopted, it was the first written national constitution in the world.  The Framers had no history to go by in determining the right balance of difficulty and ease for amendment.  One wants constitutional amendment to be more difficult than simple legislation in order to preserve basic stability in our governmental system, but not so difficult that no meaningful amendment can ever be passed.  It turns out that since Article Five was written, every other constitution of the states of the United States and of every democratic nation have made amendment easier than it is in the United States Constitution, which is now the most difficult in the world to amend.  In fact, the last time constitutional amendment was used in the United States to resolve a major national issue was almost a century ago, in 1920, when the 19^th Amendment gave all women the vote.

This difficulty in changing the Constitution through the democratic process of amendment has provided much of the impetus to the first school of judicial interpretation.  If the Constitution can not be amended formally, it must fall to the judges to amend it informally through strained judicial interpretations which stretch the language’s meaning beyond any possible original intent.  The prime example of this is what I call the “four-word” Constitution (see the chapter by that name in Timely Renewed for more detail on this point).  Two two-word phrases in the 14^th Amendment, “equal protection” and “due process,” have been stretched by Supreme Court decisions to create legal doctrines which encompass literally thousands of words.  The 14^th Amendment was meant to supplement the 13^th Amendment (subject of the movie Lincoln) in assuring the rights of the newly freed African-Americans.  However, it has instead been invoked to grant personhood to corporations (which underlies the Citizens United decision) and to decree that unborn babies are not persons whose rights supersede their mothers’ vague right to privacy (which underlies Roe v. Wade).  In earlier times these little phrases were held to forbid states from passing wage and hour laws (in a famous, or infamous, case called Lochner v. New York) and more recently to argue that all of the states must marry couples of the same gender.

Which brings us to the gay marriage cases now before the Supreme Court.  There are two sets of cases.  In one, the plaintiffs challenged the right of a majority of Californians to vote for a referendum measure in 2008 called Proposition 8 which limited marriage in California to heterosexual couples.  In the other the plaintiffs challenged a law enacted by overwhelming majorities in Congress and signed by President Bill Clinton in 1996 called the Defense of Marriage Act (DOMA), which provides that federal spousal benefits are only payable to opposite-sex spouses.  In both cases lower courts have overturned the vote of the people of California and the act of the democratically elected United States Congress and President Clinton on supposed constitutional grounds. 

The 2-1 anti-DOMA decision from the Second Circuit is a confusing morass which flits from rationale to rationale.  At one point it argues that marriage has been traditionally defined by the states, and therefore the federal government is bound by state marriage laws.  This argument might hold if Congress enacted a law either forbidding or requiring states to pass laws regarding gay marriage.  However, DOMA only applies to the payment of federal benefits under federal programs funded by federal taxes.  Here clearly the federal government has a right to establish a uniform rule.  In the end the decision really argues that refusing to recognize gay marriages violates the “equal protection” language of the Constitution (although in the case of the federal government that is in the 5^th Amendment rather than the 14^th) – but only sort of.  Because the phrase “equal protection” is so vague, judges driven by their desire to write their personal policy views into the Constitution can not resist the temptation to twist that little phrase to benefit some favored class.  In the late 1800s and early 1900s Supreme Courts did this to protect big business corporations, and similarly today judges want to do the same for a powerful and popular modern constituency.  However, the judges of the Second Circuit did not want to argue that gays have suffered like the enslaved African-Americans, because that would be ludicrous.  Therefore, they invented a watered down category just for gays, a category that has no basis in constitutional language or history, but which permitted the Second Circuit judges to write their personal pro-gay marriage social views into the Constitution without making the ridiculous argument that not recognizing gay marriages was equivalent to the horrible oppressions endured by African-Americans in our history.           

In the Proposition 8 case, also decided 2-1, a notoriously left-wing Ninth Circuit Court judge used a bizarre interpretation of a case called Romer v Evans to rule essentially that a state can never repeal a law if a judge feels that that law grants a right.  This is patent nonsense, and most observers agree that the judge only used this approach in an effort to appeal to the vanity of Justice Anthony Kennedy, the author of the Romer decision who many feel will be the swing vote in deciding the gay marriage cases.  (That a single judge may decide such a major issue for over 300 million Americans now and for generations to come also illustrates the profoundly anti-democratic nature of our present system of judicial supremacy.) 

In contrast, the lower court decision that the Ninth Circuit Court was upholding did not shirk from openly rewriting the Constitution.  There San Francisco based Judge Vaughan Walker ruled that gay marriage is required by the “equal protection” clause of the 14^th Amendment everywhere the 14^th Amendment applies, that is the entire United States.  Mandating gay marriage throughout the United States is the honest and straight-forward objective of all gay marriage advocates.  Now, calling Judge Walker’s decision honest does not mean that it is correct, or that he is an honest man.  In fact, there is considerable controversy over his decision not to disclose to the parties in the case that he was partnered gay man who might therefore have had a direct personal interest in its outcome.  Whether he should have been legally required to take himself off the case can be argued either way, but there can be no question that in keeping his personal stake in the case secret he blatantly violated the spirit of judicial openness and disinterestedness which is fundamental to maintaining public faith in the integrity of our judicial system.

Be that as it may, Judge Walker boldly went where the other judges dared not to go, even though they clearly would have liked to go there, and forthrightly elevated gays to the protected status intended by the 14^th Amendment for the former African-American slaves.  While the Ninth Circuit judges dared not go there, their Proposition 8 decision is just a clever cover to try to keep Judge Walker’s ruling in place in our most populous state.  (The Ninth Circuit’s rationale would supposedly only apply to California, but its reasoning would assure that no state could ever repeal a law again without a federal court battle.)  

Why did the Second and Ninth Circuit judges resort to such legal ruses to implement their personal pro-gay marriage social policy preferences?  One reason is that the Supreme Court has already unanimously ruled that the United States Constitution does not mandate gay marriage in a 1971 case called Nelson v. Baker.  However, the larger problem is that there is simply no basis in the United States Constitution to require that either the state or federal governments recognize gay marriages.  If the members of Congress and the state legislators who enacted the 14^th Amendment in the late 1860s had been told that it would require that states allow two men (or women) to marry, it would not have received a single vote anywhere.  And that would be equally true when the 5^th Amendment was enacted in the 1790s.  There is simply no argument from original meaning to find the recognition of gay marriage mandated by the United States Constitution. 

(Ironically, in the same December 21 edition of the Washington Times where my op-ed appeared, there was a tribute to the late and much missed Judge Robert Bork by Washington DC attorney Theodore Olson.  Judge Bork was one of the great authors and champions of the modern originalist school of constitutional interpretation.  The irony is that Mr. Olson, in a complete betrayal of Judge Bork’s principles, is one of the lead attorneys in the Proposition 8 cases advocating that the Supreme Court force gay marriage on the entire United States by judicial dictate.)

So what do we do if times and people change?  Reacting to news that the Supreme Court would hear the gay marriage cases, gay advocates were cautiously optimistic.  As one told the New York Times, “we’ve made enormous progress and built irrefutable momentum, winning the freedom to marry in state after state and winning over a solid majority of support in this country,” and another declared that “there is no doubt that the wind is at our backs.”  Such arguments would raise the old joke that the Supreme Court follows the election returns to a principle of constitutional adjudication.  They reflect the school of fluid judicial interpretation which would make the Supreme Court simply one more law-making body, except one that does not have to face elections or any other democratic restraint. 

The first solution to changing times and circumstances is just that – democracy.  As the gay marriage advocates noted, more and more states are adopting gay marriage, and Congress can repeal DOMA at any time that its opponents succeed in making the political case against it.  Why abandon the democratic process when one is winning the democratic argument?  But beyond that, what if we want everyone in the United States to have access to gay marriage, or otherwise update our old Constitution?  With the current amendment process moribund, how do we achieve that if we do not want the judges to usurp the People’s control over their Constitution? 

The answer is to re-invigorate the amendment process through some modest reforms which would open it to greater participation and feasibility, all while maintaining the principle that amendments must be approved by super-majorities.  Such an Amendment Amendment proposal is laid out in more detail elsewhere in this blog and in my book Are We the People?  With this reform, control of our Constitution (which begins after all with the words We the People) can be restored to the democratic process and the judiciary’s usurpation of the amending power will be delegitimized.  However, even before such a reform is passed, the Supreme Court can begin the restoration of the People’s right to control their Constitution by leaving this contentious social issue to the democratic process, rather than cutting short the people’s deliberations by decreeing that they must resign their voice to the dictates of that high tribunal.

Using Amendment to Take Back Our Constitution from Big Government, Big Business and the Supreme Court

I have not posted on the Affordable Care Act decisions because I’ve been busy getting out my new book, Are We The People? Using Amendment to Take Back Our Constitution from Big Government, Big Business and the Supreme Court.   This controversy is an excellent opportunity to step back and ask the “big picture” question:   “Why it is, in a democracy, that a single Supreme Court justice can decide on the meaning of our Constitution for over 300 million Americans – even though our Constitution begins with the words WE THE PEOPLE?  Do you personally remember the last time the meaning of the Constitution was decided by the deliberative democratic method the Framers intended – amendment?

Are We The People? shows how we, the People, can take back control of our Constitution from Congress and the Supreme Court.  By enabling the states to directly initiate amendment proposals and other careful limited reforms, the Amendment Amendment will revive the ultimate power the Framers gave us.  Carefully balanced to appeal to both progressives and conservatives, the Amendment Amendment set out in Are We The People? is intended as a politically realizable proposal which could actually be enacted under our existing amendment procedures.  It is time to reform the amendment process and return final control of our Constitution and our government, as the Framers intended, to we, the American People.

Are We The People? is available in e-book format for only $2.99 from Nook and Kindle, and in print from Amazon and other online outlets for only $5.99.

It is quite arrogant of Professor Levinson to describe a document which has served and endured for 225 years as imbecilic.  But he is not alone.  In this criticism he renews the complaints of progressives since Woodrow Wilson frustrated by their inability to get the Founders’ convoluted tri-partite federal government structure to act decisively and vigorously to address the many problems they are sure the federal government can solve.  Fortunately, Professor Richard Epstein has written an excellent rebuttal to Professor Levinson, pointing out how many of our modern problems began precisely because in the early 20^th century the Supreme Court allowed the federal government to breach its constitutional bounds and expand far beyond its original constitutional functions.  Professor Epstein goes on to show how many of Professor Levinson’s proposed constitutional innovations would just make matters worse.

What leftists like Professor Levinson can not, or will not, recognize is that any expansion of a government’s power must necessarily detract from the liberty of its people.  That is the very definition of government.  It is the institution which people in society permit to curtail their liberty in order to benefit from living in society.  As Professor Epstein notes, we “should not defend a state of anarchy to ward off the excesses of state power. But unless we once again find the middle ground between too much and too little government power, we will continue to suffer as a nation.”  The Founders’ brilliant insight was to create an institutional framework for reaching that middle ground.  They could not see into the future to know exactly what the appropriate level of government power should be.  But they could create a balanced government system which would make it difficult to expand government power without the consent of many different political actors.  This would protect the interests of liberty against the forces always pushing to expand government power.  Professor Epstein concludes that the “original Constitution was not imbecilic.  On many questions, it reflects a level of wisdom that has unfortunately been lost today.”

However, there is one critical point where both professors shoot wide of the mark.   The main point of Professor Levinson’s piece is that the Article V amendment process is now moribund.  He writes that the “last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms.”  I would disagree – the last truly significant constitutional change was actually the 19^th Amendment, added in 1920 to extend the franchise to women in all the states!  He continues that the “near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.”

Professor Epstein’s response shows that there is in fact much to be concerned about.  In the absence of a workable amendment process, the Supreme Court has usurped that function and, as well summarized by Professor Epstein, in decisions beginning even before the Roosevelt New Deal Court created a situation where “today’s working Constitution is quite different from the sparer government regime put in place by the original Constitution” and this “increased role of the government in the economy has had a negative effect on American society.”

The issue is, what do we do about it?  Professor Epstein and I had a brief exchange on this during a recent Federalist Society teleforum on his new book, Design for Liberty: Private Property, Public Administration, and the Rule of Law,  Professor Epstein first noted that none of the current Supreme Court justices, including the “conservative” ones, had shown any inclination to reverse the last 80 plus years of Supreme Court precedents which have effectively amended the Constitution to allow this vast expansion of federal power.  When I asked if he could craft a constitutional amendment to annul these decisions he assumed I was suggesting an amendment which would be initiated by a second constitutional convention under the current Article V as advocated by Professor Levinson.  Professor Epstein expressed his opposition to such a convention because “Sandy Levinson would run it.”  (I agree with Professor Epstein here, having written in an earlier post that one reason to oppose the convention method of constitutional amendment is because law professors and politicians would control it.)       

Professor Epstein stated that his approach was to build the normative case for returning to limited government.  This is a worthy pursuit and I pray for his success in persuading many others.  But even if he is successful, by what method would the return to a more limited government be implemented?  To restore something approaching the pre-New Deal limited federal government would require overturning dozens, maybe hundreds, of Supreme Court precedents.  If even conservative stalwarts like Clarence Thomas and Antonin Scalia will not do this, how will it be achieved?  Will we rely on politicians to simply vote to restore limited government?  To think that this could be accomplished simply by the normal political processes belies all experience.  And even if one President or Congress rolls back the federal leviathan to some extent, that work can easily be reversed by the next set of politicians to promise that Nanny Sam will fix everything.

The only way to restore some form of limited federal government is to turn to the ultimate power the Founders gave us – amendment.  Only amendment can effectively overcome the decades of hoary Supreme Court precedents which underlie the federal leviathan.  These would not be radical amendments of the type Professor Levinson advocates.  Instead, these would be amendments simply restating and re-affirming the original constitutional limits on the federal government.  Of course, the federal Congress will not initiate amendments limiting its own powers.  Therefore we must reform the amendment process to enable the states to initiate amendments without having to go through either Congress or the unworkable and outmoded mechanism of a convention.  This will open the path for grassroots constitutionalists to restore the constitutional balance Professor Epstein advocates.  Such an “amendment amendment” proposal can be found here.

 We will not know with certainty until the actual decision is released, which Court observers expect will be in June.  Justice Kennedy has disappointed constitutionalists before, and is capable of cobbling together some narrow reason to let the individual mandate and the entire law survive.  However, assuming the law is ruled invalid, what next?  Historical comparisons are never exact, but those who have studied the rise of the modern federal regulatory state can feel a sense of déjà vu over the events of the last few days.

 In the mid-1930s, a series of headline-making Supreme Court decisions overturned not one but many aspects Franklin Roosevelt’s New Deal.  Some observers thought the whole Roosevelt program dead, and expected a major Republican comeback in the 1936 elections.  Instead, FDR went on the attack, blaming “economic royalists” for the continuation of the Depression and denouncing the Supreme Court for blocking Democrats’ efforts to use government to “help” Americans recover from the Depression.  One can reasonably argue that the entire Democrat campaign was a massive prevarication, but politically it worked.  FDR won re-election in a landslide, and Democrats made substantial gains in Congress.

 In the midst of this political attack, one of the Supreme Court justices who had been voting against the New Deal laws, Owen Roberts (no relation to the current Chief Justice), switched to uphold a New Deal law like one the Court had struck down only a year before.  Shortly thereafter Roosevelt launched his infamous “court-packing” scheme, so Roberts’ vote has since become known as the “switch in time that saved nine.”  However, more important than this, other justices who had been voting against the New Deal laws began to retire.  Although he had not been able to appoint a single justice in his first term, by the end of his presidency FDR had named eight of the nine justices.

 Starting from 1937, the increasingly Democrat Supreme Court reversed most of the anti-New Deal decisions, and effectively eliminated all constitutional restraints on federal economic regulation.  This culminated in the 1942 Wickard v Filburn decision which held that if an economic activity might affect interstate commerce the federal government can regulate it. 

Wickard is the foundation on which not only Obamacare, but almost every other modern federal economic regulatory scheme is based.  It is the basis for allowing the EPA to regulate the use of tiny parcels of land and to stop any economic activity which might affect a single obscure species found in only one state.  It is the basis for preventing a local farmer who only sells locally from calling his produce “organic” unless she or he complies with reams of federal paperwork.  The examples go on ad nauseam.  At the end of his presidency, FDR boasted that, although he had lost the battle over his court-packing plan, he had won the war of bringing the Supreme Court into line with his New Deal philosophy of vastly expanded federal power.

 What lessons do the events of the 1930s have for us today?  First, it is still critical that Obama be defeated.  It is almost certain that any decision against Obamacare will be 5-4.  Justice Scalia is 76 years old and Justice Kennedy is 75.  While Justice Thomas is “only” 63, he is said to be frustrated with his lonely stance of firmly standing by the Constitution’s original meaning (even Scalia can drift from respect for the Constitution’s original meaning).  All Obama has to do is to replace any one of these three in a second term, and the Supreme Court will shift to upholding the leftist agenda by consistent 5-4 votes, including reversing any decision against Obamacare by the current Court.

 As many have pointed out, a decision overturning Obamacare may ironically help produce this result if conservatives get complacent over a Supreme Court victory.  Obama will be relieved of the burden of defending the wildly unpopular law, yet will be able to energize his base by denouncing the “Republican” Supreme Court’s obstruction of his efforts to “help” the people.  (On the other hand, there might be a somewhat offsetting advantage if Romney is the Republican nominee, since he is ill-equipped to attack Obamacare.)

 Second, a Supreme Court decision against Obamacare could dilute the energy for reducing federal power back to something approaching its original constitutional bounds.  The legal arguments presented against Obamacare assume the validity of all prior Supreme Court decisions.  A decision overturning Obamacare will draw a line against the further expansion of federal power, which is a very good thing, but it will do nothing to roll back the previous expansion of federal power since the New Deal.  The EPA and all of the other alphabet soup of czars and regulatory agencies will remain undisturbed.  Again, complacency and lack of a clear target are the dangers. 

 (However, there is a somewhat offsetting advantage here also.  The publicity over the Obamacare cases has significantly raised public awareness of Wickard and its ilk, cases which even most lawyers had forgotten about if they were more than a few years out of law school.  This can only help in the larger war of educating Americans on how the federal government has expanded far beyond the limits the framers so carefully built into the Constitution.)

 Third, a victory in the Supreme Court will perpetuate the myth that the Supreme Court will protect our freedoms.  As the FDR New Deal cases like Wickard and many since show, the Supreme Court is just as capable of taking away our freedoms as it is of preserving them.  We need to get over the New Deal idea that the Supreme Court is the ultimate arbiter of the meaning of the Constitution, and has the right to change its meaning to keep it up-to-date with current social thought.  We can not rely on the Supreme Court.  Only the political victory of Americans who respect the Constitution, reinforced by constitutional amendments restating and re-affirming the Constitution’s original meaning and structure, can permanently assure the restoration of our freedoms and Republic.

 To accomplish the first we need to elect constitutionalists to Congress and state and local offices, not just the presidency.  To accomplish the second, we need to reform the amendment process to allow states to initiate and enact amendments without having to go through Congress or the unused and archaic mechanism of a convention. Such a proposal can be found here.

The Supreme Court will soon hear arguments on a number of cases challenging Obamacare.   The cases raise a number of different issues, and the justices have allocated an unusually long time for the oral arguments.  There are many predictions about the possible outcome of the case, and given the number of issues it is entirely possible that there will be a complex decision, with various combinations of justices coming out differently on different aspects of the case.  In particular, it should be noted that of all the lower courts which have heard these cases only one, disctirct court Judge Roger Vinson’s decision in Florida, has held the entire 2,000 plus page statute unconstitutional.  Further, on appeal the Eleventh Circuit Court of Appeals sustained his finding that the indivdual mandate is unconstitutional, but reversed his holding that that negated the entire statute.  And the other lower courts have entirely upheld the statute.  

If the Supreme Court adopts the Eleventh Circuit’s reasoning, we could end with a worst-of-all-possible worlds scenario.  The rest of the statue would remain in place, the massive unfunded liabilities imposed on the states, the massive cuts in Medicare funding, the massive new taxes, and the massive control of the entire healthcare system by federal regulators, as well as all of the other parade of horribles in the statute’s 2,000 plus pages.  Removing the individual mandate alone but leaving the rest of Obamacare in place will only bankrupt the health insurance industry (which would probably please the Obama administration since they could then go to an entirely nationalized healthcare system)  and will remove one of the most potent popular arguments for repealing the entire statute.

And, as noted other lower courts have upheld Obamacare entirely.  Indeed, in an op-ed in the New York Times last year, Harvard law professor Laurence Tribe argued not only that Obamacare is constitutional, but that all of the current Supreme Court justices except for Clarence Thomas will vote to uphold it.

Obamacare rests on Congress’ power under the Constitution to “regulate commerce … among the several States.”  From the founding through 1936 that clause was interpreted as excluding activities which occurred only within one state. Under that original interpretation, not only Obamacare but much of modern federal economic regulation would be indisputably unconstitutional. However, in 1937 the Supreme Court began to reinterpret the interstate commerce clause. The culmination of this reinterpretation was the 1941 case of Wickard v. Filburn, which upheld a penalty against an Ohio farmer for growing more crops than allotted to him under federal agriculture regulations even though he only consumed them on his own farm.  The Supreme Court held that the interstate commerce clause allowed Congress to regulate anything which might affect economic activity in another state (by growing his own food instead of buying it Mr. Filburn might depress prices for crops sold interstate).

For decades after 1937 the Supreme Court found no federal economic regulation unconstitutional.  There was some hope that the Supreme Court would finally put some bound to this interpretation in the 1990s when it held that the interstate commerce power did not extend federal jurisdiction to carrying guns near schools and rape.  However, that hope suffered a serious setback in the 2005 case of Gonzalez v. Raich which held that federal regulatory power extended even to a cancer victim who grew marijuana plants in her own home for her own use pursuant to California’s medical marijuana law.  Here even Justice Antonin Scalia voted for federal power, and Professor Tribe cites this as proof that Justice Scalia would vote to uphold Obamacare.

The issue is bigger than even Obamacare, which is pretty big.  Is there any limit on federal regulatory power?  The Wickard rationale can easily be interpreted to say that there is none.  The plaintiffs in the Obamacare cases are in the legally awkward position of having to argue that somehow there is some line somewhere.  The line they are trying to draw is a distinction between activity and inactivity.  Professor Tribe correctly notes in his article that this distinction fails if we allow that the fine for failing to buy health insurance is a tax.  In his decision Judge Vinson rejected that argument because of the politically deceptive refusal of congressional Obamacare proponents to describe the fine as a tax.  However, the Fourth Circuit Court of Appeals did accept that argument in dismissing the Virginia v. Sebelius and Liberty University v. Geithner cases.

Judge Vinson declared “this far but no farther!” I would be overjoyed if his opinion were to be adopted by a majority of the high court.  However, we must recognize that the Wickard and Gonzalez cases are mighty obstacles to defeating Obamacare in the Supreme Court.  Moreover, even if there is some line drawn by the Supreme Court against the individual mandate, “this far” is still very far beyond the original meaning of the interstate commerce clause.  The legal attack on Obamacare must proceed on the assumption that all previous federal economic regulation is valid.  A victory against Obamacare would be a great victory for freedom, but would still leave vast fields in which the federal leviathan can romp triumphant over our liberties.

So what do we do?  Given the weight of the New Deal interstate commerce clause legal precedents, we may not be able to rely on the courts.  The obvious contingency is political action in Congress to repeal Obamacare, which must be pursued with unfailing vigor now and through the 2012 elections.  However, as noted, if the Supreme Court strikes down the individual mandate, but only that part of Obamacare, the political argument for repeal of the rest of the statute may actually be weakened.

Ironically Professor Tribe pointed us toward a third alternative.  In his article, even he acknowledges that Justice Thomas “can be counted a nearly sure vote against the health care law” because “he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.”  A return to the pre-1937 interpretation of the interstate commerce clause would not only sweep away Obamacare, but a host of other “one-size-fits-all” regulatory regimes which have been imposed on America by a corrupt, over-centralized, bureaucracy-ridden national government.

Of course, Justice Thomas can not persuade even Justice Scalia to take this step judicially.  However, there is a method of accomplishing a return to the original understanding of the interstate commerce clause in one stroke.  That is constitutional amendment.  This post is already too long, so I refer anyone who has read this far to my further discussion of how we can achieve that here.  With typical leftist arrogance, Professor Tribe entitled his article “On Health Care, Justice Shall Prevail.”  Such an amendment would restore justice by allowing the entire American people to declare “not even this far” to the federal imperialism which Obamacare so blatantly represents.

Newt’s complaints about judicial legislating are very legitimate.  The extent of our judiciary’s exercise of anti-majoritarian power is inconsistent with democratic governance.  However Newt’s proposals, while technically constitutional as Mr. Levey argues, run the risk of promoting destabilizing confrontations between the branches, and worse could be dangerous in the hands of a leftist President and Congress.   The better solution to judicial imperialism is the majoritarian process provided in the Constitution, which is amendment.  Constitutional amendment would be an orderly and democratically legitimate way to overrule anti-majoritarian judicial decisions. 

Unfortunately, the path of constitutional amendment is considerably restricted by requirements of Article V which are the most stringent of any written constitution in the world.  Worse, half of Article V is moribund as its requirement that the states can only initiate amendment proposals through a convention has effectively blocked their introduction of amendments which would limit the ever-increasing centralization of power in Washington. 

If Gingrich wishes to curtail judicial imperialism, he would do better to promote the re-energizing of the amendment process through the reform of Article V.  There are several ways Article V could be amended to facilitate greater use of the amendment process to check the excessive power of the judiciary while still preserving its fundamental concept of requiring super-majorities to change our foundational law.  The most important of these would be eliminating the archaic and useless requirement of a convention for states to initiate amendment proposals.  Eliminating the convention requirement would permit amendments to arise directly from the states which are much closer to popular influence than the remote elite Washington establishment which currently holds a monopoly on the meaning of our Constitution.  A specific proposal for such an “amendment amendment” can he found here.

Another way to measure the gross impact of federal regulation is to count the pages in the official publication of all federal regulations, the Federal Register.  This is a bit crude as a measure, because a very long regulation may be fairly innocuous whereas a short one could have a massive cost imprint, but it is a decent rough gauge of the extent of the totality of federal regulation.  The Federal Register for 2010 is over 81,000 pages long, a 19% increase in one year.  We do not have a page count on the regulations to be repealed, perhaps because many of the revisions have yet to actually go into effect, but it is safe to assume that they will come nowhere near to matching the voluminous regulations still to be issued under the new Obamacare and Dodd-Frank laws.  And there are also the numerous ongoing rule-makings by Professor Obama’s hyperactive regulators at the EPA, NLRB and the rest of the seemingly endless alphabet soup of federal regulatory bodies.

However, all this begs a deeper question: why is the national government regulating small businesses in the first place?  To put this question in perspective, the Federal Register was first issued in 1936.  At that time it was 2,600 pages long (and that was after four years of the New Deal).  The Left will argue that growth in federal regulation is inevitable as our Nation grows.  So, let’s look at that.  From 1936 to 2010 the population of the United States grew by 240% (128 million to 308 million).  Over the same time period the Federal Register grew by over 3131%.  That means that the page count of federal regulations has grown at over 13 times the rate of population growth since the middle of the New Deal.  And again, as noted, Professors Sunstein and Obama still have much, much more regulation to come.

One of the reasons the first Federal Register of 1936 was so short was that up until then the Supreme Court had followed the original understanding of the Constitution’s interstate commerce clause, which limited Congress’ authority to commercial activity that actually crossed state lines.  However, the next year in 1937 the Supreme Court began to abandon the previous understanding of the interstate commerce clause.  Under the new interpretation anything that might maybe in any way have any affect on any kind of commerce any where was deemed to come under the federal Congress’ power.  This included any business no matter how small it was and no matter how local its activities were.  The classic case is Wickard v. Filburn, a 1941 case which held that an Ohio farmer could be fined for violating federal agricultural quotas for food grown for use on his own farm! 

This massive re-interpretation of the Constitution’s interstate commerce clause completely overthrew the Constitution’s original allocation of powers between the federal and state governments.  Small businesses were now subject to a double burden of federal as well as state regulation.  With Obamacare it is now even claimed that a private individual citizen can be penalized under the clause regulating interstate commerce for failing to buy something the federal government says they must buy. 

Where did the Supreme Court get the right to make such a massive change to the original meaning of the Constitution?  It certainly is not in the Constitution itself.  There it says that to change the Constitution you have to get various super-majorities of elected legislatures.  There is nothing about courts changing the Constitution.  In fact, the entire edifice of the federal regulatory state rests on an undemocratic and unconstitutional expansion of the interstate commerce clause by a body without constitutional authority to make such an expansion.

Unfortunately that expansion is now locked into 70 years of Supreme Court precedents.  Even if the current Supreme Court declines to further extend the expansion by overturning the Obamacare individual mandate, that will still leave in place the other 81,000 pages of federal regulations, and many more to come which fall just short of the individual mandate.  Republicans in Congress have several legislative proposals to alleviate the federal regulatory burden on small business, but given the morass of special interests behind all of this federal regulation, it is hard to see how Congress will ever make a meaningful dent.

In Timely Renewed: Amendments to Restore the American Constitution, I propose instead that we re-invigorate the constitutional amendment process to restore the original meaning of the interstate commerce clause, along with other much abused clauses.  The specific proposal for restoring the interstate commerce clause’s original scope is in chapter 6.  With this, small business would be regulated only by the states instead of “one-size-fits-all,” Big Business oriented federal regulations.  Only this will really achieve Professors Sunstein and Obama’s purported goal of relieving small business of the regulations which are stifling their ability to produce the new jobs we so desperately need.

The problem is structural.   Even if this Congress refuses to raise the debt ceiling, a future Congress can resume borrowing and spending.  That is why we must look to constitutional amendment to constrain Washington.  However, it is unrealistic to expect that two-thirds of both houses of the federal Congress are ever going to vote true and lasting limits on their power.   Such limits are only going to come from the States and the People.  The “amendment amendment”  clears the way for States to enact amendments to the Constitution without having to go through Washington.  

There is a tremendous pent-up desire to use the amendment process to restore the proper balance of governmental power in our Republic.  Besides the various balanced budget amendment proposals, there are the repeal amendment, an amendment to cap federal spending, and congressional term limits to end the era of the professional Washington politician.  The “amendment amendment” opens the way for these and other worthy proposals to be presented to the People without having to first be approved by the very body they are intended to limit.

Some of the commentators to the article raised the very good point that, given the extent to which the federal government has ignored and violated the Constitution thus far, why would it obey new constitutional amendments restricting its power?  Short of arms, the only answer to that is drafting.  No one violates constitutional clauses which are clear and precise.  For example, federal elections are held every two years, and Congress has never attempted to grant a title of nobility.   Federal power has been expanded where the Constitution’s language was too general.  This is not to criticize the original framers (I do think the drafters of the fourteenth amendment deserve to be criticized for being deliberately vague) – one can not foresee every possible abuse.  However, now that we can see how and what the federal legislature, executive and courts have abused in the constitutional language, we can draft tighter language which closes those loopholes.  I propose a number of such amendments in Timely Renewed.   However, first we must end the congressional monopoly on initiating constitutional amendments by passing the “amendment amendment.”

In that time Presidents, both Democrat and Republican, have promoted the idea that the President has a right independent of Congress to send US forces into combat.  For most of our history this idea would have been rejected as a violation of the separation of powers written into the Constitution.  According to Madison, the constitutional arrangement was that Congress decided whether to engage in hostilities and only then would the President carry out the operations as commander-in-chief.   In an article he wrote under the pen name Helvidius in 1793, he argued that “those who are to conduct a war cannot in the nature of things be proper or safe judges whether a war ought to be commenced, continued, or concluded.  They are barred from the latter functions by a great principle in free government analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.”

Since the 1950s this clear arrangement has broken down and the situation has become very murky.  As noted, Presidents have claimed the power to launch operations on their own authority.  Sometimes they solicited vague authorizations from Congress short of a formal declaration of war, such as the Gulf of Tonkin resolution which Lyndon Johnson used to expand the US involvement in Vietnam, or the resolution which George W. Bush used to invade Iraq and Afghanistan.  When the Presidents do not bother consulting the Congress, the Congress has acquiesced by not taking any action to stop the President and continuing to authorize appropriations to fund the actions. 

Once, in 1972, Congress did push back by passing the War Powers Resolution.  This requires the President to notify Congress of the commencement of a military action, and then get a congressional approval within 60 days.   Most scholars consider the War Powers Resolution to be fairly ineffectual in restoring congressional priority in decisions to go to war.  Even so, Richard Nixon vetoed it (it was passed by more than the two-thirds of Congress needed to override the veto) and every President since has rejected its attempt to limit their power to commence military action.  Despite his statements in support of the War Powers Resolution when he was a Senator, President Obama now appears to be as willing to reject it as have all of his recent predecessors.

My purpose here is not to comment on the wisdom of any of our military engagements since 1945, including the current exercise in Libya.  My concern is deeper.  I believe in the wisdom of the separation of powers in the Constitution.  Governments possess no power more terrible than the ability to go to war.  The Framers felt that no single officer of the government, even the President, should have the power to go to war on his sole and exclusive authority.  We have lost sight of that fundamental principle, and as a result 80,000 Americans have died in wars launched contrary to the requirements of the Constitution.

Of course, supporters of presidential war powers have responses to this.  They say that modern warfare is murkier and faster than in the times of the founding.  In our times, there is not enough time for a debate in Congress.  I am willing to concede that modern circumstances are different.  However, is that sufficient justification for a de facto amendment of the original constitutional arrangement?  Is this simply another example of the concept of the “living Constitution”?  This philosophy basically says that elements of the federal government can change the constitutional allocation of powers to adjust to modern conditions without a formal amendment to the Constitution if they can get away with it.  Despite the fact that many so-called conservatives have supported this shift in the war-making powers, if we are going to respect the Constitution and the rule of law, we must reject this interpretation just as vigorously as we do other modern distortions of the Constitution.

So how do we deal with the changed modern conditions of war?  In chapter 7 of Timely Renewed, I propose an amendment which moves the requirement of congressional approval back to a point where proper congressional deliberation is still possible.  This is before US forces are even sent overseas.  The amendment would require a distinct congressional approval for any deployment of US forces outside of US territory, and further require that that approval be renewed every two years or else the troops have to be brought home.  Not only will this restore the Congress’ original constitutional authority to make the basic policy decision about our foreign wars, but also force us to review our far-flung worldwide military operations in an era of massive budget deficits.