Notes From Babel

Can Non-Lawyers Decipher Our Unwritten Constitution?

with one comment

In the news today, Michigan federal district Judge George Caram Steeh—the first to rule on the merits on the many challenges to the Affordable Care Act’s (aka, Obamacare) so-called “individual mandate”—issued an opinion upholding the constitutionality under the Commerce Clause.  A couple good posts on the topic at Volokh here and here.

This is an issue I wish I could talk about with my non-lawyer friends, family, and blogger-colleagues:  it’s important, and though these are legal issues, they should be straightforward enough.  Yet, I am not so obtuse to realize this is a pipe dream.  One of the many problems with having an unwritten constitution is that it becomes impossible to have meaningful discourse with non-lawyers—more specifically, with non-constitutional-lawyers—about many important social issues, such as the individual mandate.  Come to think of it, this is one of the key reasons I was largely apolitical for my entire life before going to law school:  It was only after obtaining a formal understanding of the purposes for which the Constitution was originally designed and understood that I felt I could meaningfully discuss the direction of law and policy in our country.  I just didn’t find it meaningful to opine on what I happened to think were the prudential limits of political power without first understanding what the actual limits are.

Would that I could report to you, dear non-lawyer reader, that an expensive legal education was, in fact, not truly necessary to obtain such an understanding, but that you, too, can acquire it by sitting with our brief Constitution for a mere 30 minutes or so.  Alas, we no longer have a written constitution.  That old thing just could not keep up with us.  Though we once frequently amended it, it was a cumbersome process.  Moreover, American judges learned the art of abstraction, and further learned to seize upon individual words in the Constitution rather than entire sentences and clauses.  Thus, “nor shall any State deprive any person of life, liberty, or property, without due process of law” was given a nonsensical “substantive due process” component, and “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws” was stripped of its limitations to “States” and to “protection” of civil and political rights.  The power “to regulate Commerce . . . among the several states” was extended to regulate seasonal puddles that happened to drain into a river and eventually cross state lines.  And an entire administrative state—ominously known as the “fourth branch” of our government—has immense powers the extent of which are not yet known even to itself.  Think of the innumerable bureaucrats breathlessly churning out the hundreds of thousands of pages of new regulations—which will not be subject to any vote in either house of Congress, or to presentment to the President—which will ultimately give Obamacare its full breadth and scope.

In short, some of the most important clauses in the document known as the Constitution—i.e., the clauses that modernly afford the most power to the federal government—are unknowable to the general public.

Thus, if we had a written constitution, I might implore my readers for their thoughts on the individual mandate by asking them to consider Article I, section 8 of the Constitution—

The Congress shall have Power  . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

—and ask what they take the plain meaning of those words to be, and whether they authorize the federal government to impose a tax on any American who chooses not to engage in some specific, local economic activity that does not traverse state lines.  But the Supreme Court long ago kyboshed the notion that mere yokels ought to know what their constitution means.  It has instead taken a non-interpretivist view of the document we call the Constitution, and thus questions about the meaning of its clauses and limits of the power it confers upon the federal government are reserved to professionals.  Plain meaning holds no sway with judges.  Instead, prior opinions that have modified and even overturned the provisions of that written document are given the advantage through the doctrine of stare decisis—a doctrine that originally was designed to let prior decisions stand all else being equal, but now has become a modern iteration of the tenet “the king can do no wrong.”  In our times, under stare decisis, the Court can do no wrong, at least so long as the written Constitution is its only contender.*

Still, I wonder what non-lawyers think of the individual mandate.  Detach yourself, if you can, from your feelings about the merits of the Affordable Care Act itself.  Assume only, as always has been assumed and never seriously doubted in the history of our American government, that our federal government is one of enumerated, limited powers.  Is there any straight-faced argument (i.e., an argument a non-Obama-administration-lawyer might make) that would permit a limited government to impose a tax for declining to participate in economic activity?


* Earlier jurists understood this.  The Justice Gibson, dissenting in the Pennsylvania Supreme Court decision in Eakin v. Raub in 1825, stated:

[I]n questions of this sort, precedent ought to go for absolutely nothing.  The constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine.  Instead, therefore, of resting on the fact, that the right in question has universally been assumed by the American courts, the judge who asserts it ought to be prepared to maintain it on principles of the constitution.



Written by Tim Kowal

October 7, 2010 at 9:56 pm

One Response

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  1. Paragraph three is great.

    That’s all I’ve got to say.



    October 8, 2010 at 8:49 am

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