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.