Friday, June 29, 2012

The Missing Constitution

Mark Graber

The opinions in National Federation of Independent Business v. Sebelius serve as a reminder that most justices think they are being paid by the word or have moral obligations to keep their otherwise idle clerks busy. Each opinion is based on a Constitution that can be summarized in several sentences. What is most interesting and disturbing is the absence of one alternative Constitution.

Justice Ginsburg’s Constitution is the Constitution of New Deal Democrats. Article I gives the federal government the power to resolve any national problem, particularly national problems that individual states cannot resolve on their own. The number of persons without health insurance is a national problem that states cannot resolve on their own. Since the individual mandate and extension of Medicaid are not utterly idiotic solutions (the New Deal standard) to that problem, they are constitutional.

Chief Justice Roberts’s Constitution is the Constitution of the Republican Party. National powers are enumerated and limited. Those limits are enforced by the Supreme Court. The New Deal represents the absolute limit of federal power. No New Deal legislation actually required persons to purchase products available on the interstate market. Therefore, the individual mandate is not a valid exercise of the commerce clause. No New Deal measure ever conditioned so much money on compliance with federal conditions for receiving federal funds. Therefore, the extension of Medicaid is unconstitutional. New Deal decisions, however, plainly stated that any exaction that gets some revenue can be a tax. Therefore, the individual mandate is a constitutional tax.

The Constitution of the Justices Kennedy, Scalia, Alito, and (particularly) Thomas, is the Constitution of the Tea Party. New Deal decisions such as Wickard v. Filburn survive, if they survive, only on the principle of stare decisis. Such pre-New Deal decisions as United States v. Butler better reflect fundamental constitutional commitments. The federal government has a very limited role in making social welfare policy, so such agencies as the Department of Education are constitutionally suspect. Both the individual mandate and expansion of Medicaid invade fundamental state prerogatives and so should be declared unconstitutional unless clearly sanctioned by text or precedent. Whether states on their own can solve health care problems is not relevant to the constitutional question.

What might be called the Move-On or Progressive Constitution is missing from this debate entirely. That Constitution, as elaborated in different ways by Jack Balkin, Frank Michelman, Alexander Tsesis, Rebecca Zietlow, Sot Barber and many others (one always loses friends composing these lists) goes something like this. The post-Civil War Amendments, most notably the abolition of slavery and the equal protection clause, were designed to ensure that all persons would have the rights and resources necessary to live lives as democratic citizens (or some other phrase). Persons need rights to health care in order to function as democratic citizens. Therefore, the individual mandate and expansion of health care are legitimate exercises of congressional power to enforce the rights protected by the Thirteenth and Fourteenth Amendments.

This absence may have a subtle effect on constitutional development. Opinions do not simply decide cases. They make different developmental paths somewhat more or less likely. Even though Lawrence v. Texas explicitly denied having any relevance for same-sex marriage, the constitutional case for same-sex marriage was easier to make after that case was handed down. The health care opinions entrench the basic principles of the Republican Constitution a bit more than was previously the case and make championing the Move-On Constitution a bit more difficult.

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