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.