Tuesday, February 01, 2011

Giving Originalism a Bad Name

David Gans

Chief Judge Vinson’s opinion, issued yesterday, profoundly misinterpreted the Constitution in order to justify striking down the Patient Protection and Affordable Care Act. In his opinion, Judge Vinson invoked a highly selective, skewed version of our Constitution’s text and history. Relying heavily on the work of a few conservative originalists, Chief Judge Vinson’s opinion ignored or dismissed every piece of evidence to the contrary, including the Framers’ understandings of the scope of the powers of the federal government and Marshall Court’s canonical cases construing the Commerce Clause and the Necessary and Proper Clause.

In Vinson’s telling, the Commerce Clause was designed by the Framers of the Constitution to be a narrow grant of power, which permitted Congress to regulate trade between the states, and to eliminate discriminatory trade restrictions between the states. But his suggestion that Congress’ authority under the Commerce Clause was limited to matters of trade has no support in history, and is contrary to binding Supreme Court precedent, rulings that Vinson, as a lower court judge, is supposed to follow.

In 1824, in Gibbons v. Ogden, one of the most important Supreme Court cases interpreting the Commerce Clause, the Court considered and rejected the very same argument. As Chief Justice Marshall explained in Gibbons: “This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations in all its branches . . . .” In the Federalist Papers, James Madison said much the same thing, making clear that the Commerce Clause gave the federal government the power to regulate intercourse between the states.

Marshall rejected a narrow construction of the Commerce Clause, and for good reason. A cramped understanding of Congress’ explicitly enumerated powers would thwart the Framers’ allocation of powers between the federal government and the states. While states were to retain very wide authority, the Constitution gave Congress broad powers in Article I, including the power to regulate commerce among the states, to give the federal government the power to solve national problems that states could not solve on their own. The Constitution’s Framers recognized that Congress should enjoy the authority to “legislate in all Cases for the general interests of the Union, and also in those cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual legislation.” This history has been told lately in superb works by Akhil Amar and Jack Balkin, but Vinson ignored it.

Vinson’s trade theory is inconsistent with not one, but two, of Chief Justice Marshall’s landmark opinions. In McCulloch v. Maryland, a few years before Gibbons, Chief Justice Marshall embraced a broad understanding of congressional power under Article I, holding that the Constitution gave Congress the power to charter a national bank. “[A]mong the enumerated powers of government . . ., we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce . . . . The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to the government. . . .[A] government, intrusted with such ample powers, on due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution.” Vinson’s opinion does not reflect this broad understanding of federal power under the Commerce and Necessary and Proper Clauses.

In Chief Judge Vinson’s version of Supreme Court history, the Marshall Court hardly figures at all. According to Vinson, the history of the Commerce Clause in the Supreme Court begins with the Lochner era, which repeatedly limited the power of the federal government under the Commerce Clause, invalidating federal legislation designed to protect workers and consumers from powerful corporations. Vinson writes, “for most of the first century and a half of Constitutional government . . . the Clause was given a ‘miserly construction,’” quoting with approval a 1983 concurring opinion authored by Justice John Paul Stevens. In the process, Vinson turns the Stevens opinion on its head. Justice Stevens called the Lochner era precedents “miserly” because they departed from the Framers’ design “to confer a power on the Federal Government adequate to discharge its central mission,” and were properly repudiated on that basis, but for Vinson, the Lochner era precedents are foundational, and correct. Chief Judge Vinson looks to them precisely because they gave a cramped reading to the powers of the federal government. Guided by the rulings of the Lochner era, it’s no wonder that Chief Judge Vinson finds the Patient Protection and Affordable Care Act wanting.

It’s rare to find a lower court ruling that is so badly out of line with both text and history and so many foundational Supreme Court precedents. Vinson’s opinion should arrive at the Eleventh Circuit dead on arrival.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.

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