Mad Love: Kopel’s Defense of Originalism

Andrew Koppelman

Don’t marry someone expecting to change them.  If you aren’t happy with the way they are, and you won’t be able to endure their company unless they radically remake their lives, then they are entitled to suspect that you don’t really love them at all.  And if your professed love is tied to a desire to destroy what they care about, then your love becomes hard to distinguish from hatred.  You’re in love with a fantasy, not the real person.

David Kopel recently posted on the Volokh Conspiracy blog an extended critique of my article, Why Do (Some) Originalists Hate America?.  In it he purports to reject, but inadvertently confirms, my central claims.  He writes: “I can tell you for sure that everybody at the think tank where I work, the Independence Institute, loves America.”  But in fact they love a fantasy America, not the country we actually live in.  They reject the actual, post-New Deal America that exists today, which is one of the best places in history for human beings to inhabit.  I like it here.  Does he?

In my article, I critique a prominent group of originalists, among whom I name Kopel.  (Incidentally, he lists Samuel Bray among the writers I critique, but nothing I say is critical of Bray.)  These writers, I say, aspire to

a regime whose fundamental law is only to be found in ancient archives.  Their mysterious contents take years to unearth, layer by layer.  With new discoveries, bodies of established law are unexpectedly invalidated and discarded.  Others, previously rejected, spring back into life as the scholars revise earlier conclusions.  The operations of government are in constant confusion.  This state of affairs is likely to persist indefinitely.

This is, I argue, a “weird political ideal.”  It is so distant from the regime we inhabit that one can embrace it only if one regards the status quo as radically defective.  The originalist attack on Obamacare, of which Kopel was a principal proponent (notably in an extended exchange I had with him in the Yale Law Journal Online), contemplated such a severe narrowing of Congressional power so severe as to require amputation of large parts of today’s federal government. 

Kopel never quite owns up to the radicalism of his views.  Instead, he makes a number of points that sound anodyne but have scary entailments.  “History shows that critics of perceived unconstitutional federal action are sometimes right.”  Yes, but that abstracts from just what the critics are claiming.  He writes, with respect to Randy Barnett’s narrow reading of the commerce power:

Koppelman accurately states, "If Barnett's discoveries mean what he thinks they mean, then much of present federal law is unconstitutional." Agreed, especially for the extension of federal criminal law into entirely intrastate activity. 

He thus draws your eye toward federal prosecution of harmless private users of medical marijuana.  But he also acknowledges that his originalism “would create major changes in the law” of the Commerce Clause.  Those whose liberty is thus vindicated would include polluters of the air and water, operators of dangerous workplaces, securities fraudsters, and any employer who would like to pay less than the minimum wage.  None of them are engaged in “commerce” as Barnett (and Kopel) understand it.

Kopel reassures us that originalism does not mandate what he concedes would be disastrous.  The best current originalist research shows, for example, that paper money is not unconstitutional, and so we are safe from the massive economic catastrophe that a judicial declaration to the contrary would bring about.  But this is a pure accident.  Adrian Vermeule has cogently criticized “common-good originalism" for subordinating the good of the nation to archival research:  “What happens if and when the original understanding and the common good diverge?”  Vermeule’s conception of the common good isn’t mine, but here he is right.  Even if one takes the original meaning to produce fixed and determinate results (a doubtful proposition, as I explain in the article), nothing guarantees that this meaning will suit the needs of modern society, or supports the legal structures on which today’s peace and prosperity depend.

Kopel thinks that, even if this is true, it is nothing to worry about:

Adherence to the original meaning of the powers that the people have granted to the U.S. government has never prevented the people from choosing to grant additional powers. Eight times the people have enacted new amendments granting Congress power "to enforce this amendment by appropriate legislation."

Thus, for example, he is untroubled by the possibility that new research on the paper money question could lead to "a catastrophic worldwide depression." He responds:

Fear not. Even if future research overturned current understanding of the Coinage Clause, and the Supreme Court followed suit, the Court would, for the reason Koppelman states, likely stay its mandate, and give Congress sufficient time to make appropriate adjustments, or for the people to make an amendment, if they so chose.

In other words, although his method might produce a constitutional crisis, the country obviously would unite in the face of financial disaster.  (Never mind that such a judicial decision might precipitate financial catastrophe before Congress could act.)  No politician would be reckless enough to hold the world economy hostage for some petty, short-term gain.  Oh, yeah?  Consider the now-routine behavior of Republicans every time the national debt ceiling needs to be raised. 

Kopel concedes that it is “partly true” that his originalism contemplates, as I write, "a regime whose fundamental law is only to be found in ancient archives."  But, he says, “The ‘archives’ do progress year by year. The archives are public, not mysterious.”  Perhaps someday we will reach a stable consensus on original meaning.  (Since historians still dispute some points of ancient Greek and Roman history, and since clarifying the sources of originalism will require synthesizing, at least, “a body of more than 70,000 documents,” we may be waiting a while.)

In my article, I illustrate the point about unknowable law by citing Kopel’s coauthored response to my defense of Obamacare, which relies on a previously obscure understanding of the Necessary and Proper Clause.  I observe that their constitutional objection to the statute “was not even an element of Randy Barnett’s constitutional attack on the law, the eventual basis of the lawsuit, which was unveiled as the law was about to pass in the Senate.”  I observe that their argument entails that “Congress, at a time when it was laboriously constructing major legislation, did not know and could not have known what the limits of its powers were.”  I add: “It is perhaps illustrative of this article’s claims that I was astounded by their initial article, which was based on constitutional objections that were previously unknown, not only to me, but also to the other scholars who were attacking the statute and to the judges who first declared it constitutionally invalid.“

Kopel is unmoved.  He tells us that “in fact, Congress ‘could . . . have known what the limits of its powers were,’ although the idea that the congressional majority cared about constitutional limits when enacting Obamacare is fanciful.”  (As I’ve noted, Congress certainly did not want its law to be subject to legal challenge, and could easily have navigated around the constitutional objections that were later litigated, had it known about them.)  The limits were right there for anyone to see, in articles that had been published in the Duke and Case Western law reviews, and in the online edition of Vanderbilt!  Evidently it is irresponsible for Congress to rely on the account of its powers that appears in the U.S. Reports.  If it really cared about the Constitution, it would not only adjudicate debates in constitutional theory, but decide that Kopel and his colleagues are right about everything.

I remain as puzzled as I ever was by Kopel’s reasoning with respect to Obamacare.  He writes, echoing Chief Justice Roberts’s opinion in NFIB v. Sebelius:

The power to force people to engage in interstate commerce (to buy Obamacare insurance) is not a mere incident of regulating existing commerce. A power to compel commerce would be a "principal" power—"a great substantive and independent power." No such power was granted.

Neither Roberts (as I explain here) nor Kopel explains how one can tell whether something is "a great substantive and independent power."  This is one of many places in which originalism, originally advertised as a guarantor of judicial restraint, ends up being a recipe for unbounded judicial discretion.

Kopel writes: “Professor Koppelman was wrong to denigrate the patriotism of people who disagree with him.” I certainly don’t doubt his idealism, or his loyalty to America as he imagines it, but I question whether “patriotism” is the right label for it. 

Steven B. Smith has recently offered a sustained defense of patriotism, which arises from “a sense of gratitude to one’s birthplace” and is “rooted in a rudimentary, even primordial love of one’s own: the customs, habits, manners, and traditions that make us who and what we are.” He regretfully observes that “The political right has weaponized patriotism, turning it into a litmus test for determining who is a real American.”  I admit that my snarky title parodies this weaponization.  But it is not merely snarky.  It points to a real truth.  Kopel doesn’t seem to understand what makes him what he is, and what he should be grateful for.  He breathes clean air, drinks clean water, and enjoys all the other benefits of a big federal government.  He doesn’t seem to know it.

Sometimes people pick the wrong things to love.  I admire Kopel’s moral seriousness and scholarly care, qualities that the world could use more of.  But he loves and hates the wrong things.  In the Obamacare struggle, he was one of many who honestly believed that taking health care away from millions would make Americans freer.  Libertarianism like his is routinely abused by predators, who eagerly embrace limits on government power because they would like to defraud and injure people without being bothered by the police.  You need to learn not to love your abuser.