Yale and the ACA

Yale Law School just held a Conference on Jack Balkin’s Living Originalism, a darn good book that merits careful reading and engagement. Jack—the most spirited, generous, smartest, funnest guy you can hope to meet in a habitually dorky profession—assembled the entire Yale School of Constitutional Theory, plus a large segment of the journalistic commentariat. Along with Judge Michael McConnell, I had the pleasure of serving (in the words of one participant) as the shabbos goy.

It was a real pleasure, but I did feel tempted more than once to switch off the lights. It is impossible to convey the constitutional establishment’s near-clinical obsession with, and hysteria over, the possible invalidation of the ACA’s individual mandate. It would, they say, amount to an unconscionable act of aggression on the democratic process. A reversal of the New Deal and a resurrection of the ancien régime of the Second Republic. A judicial coup d’état. The Constitution in Exile. (Never mind that the plaintiffs’ briefs explicitly affirm that Wickard was rightly decided.) Much handwringing arose over the elite media’s commitment to be fair to both sides even when, as here, there is no reasonable other side. The plaintiffs’ briefs are beneath contempt. Randy Barnett is a creature of The New York Times and its addiction to a false neutrality.

Two points about the hyperventilation:

(1) Jack Balkin’s theory goes something like this: the Constitution and especially its more open-ended clauses require construction. The way that happens is that social movements move “off the wall” propositions “on the wall”—that is, suitable for judicial ratification. Whatever the normative attractions of this view, it’s a good description of the entrenchment of liberal positions of equal protection, abortion, and gay marriage—in fact, the full range of liberal commitments. But that’s not good enough for progressives. For them, the process must be irreversible and exclusive: conservatives can’t have respectable social movements, and their ideas must remain off the wall. That’s not Jack Balkin’s position (he explicitly rejects it), and so his friends have no more use for his living originalism than for any other kind (except maybe Bruce Ackerman’s, but that’s another story). The ACA presents the difficulty in neon lights: just as Living Originalism appears in print, a handful of libertarian nutjobs paint the broccoli argument on the wall and half the country (at least) seems to believe them. Small wonder Jack Balkin is getting a lot of liberal pushback.

(2) The Yale School’s apoplexy is in no way driven by a fear that the Court might ding the entire ACA (Medicaid, exchanges, and all): to its denizens, the individual mandate is the ACA. That seems odd. Candidate Obama campaigned against the mandate. The mandate is a very small piece of a very large statute, and it is easily replaceable with, say, a tax. (Most progressives say it is a tax, except in a different form. Well then, re-enact it in the right form.) And the mandate was inserted in the ACA for one reason only—to buy the support of the insurance industry. A progressivism that can no longer tell the difference between a principled commitment and a give-away to special-interest hucksters has some explaining to do, not least to itself.

Me, I can explain it only this way: the resistance is to the very notion of any limit, qua limit. This is why progressivism always exceeds its own reach. You can’t just defend abortion as a constitutional right; you have to defend partial birth abortions. You can’t just defend equal rights for women; you have to insist that spousal abuse is a federal hate crime. You can’t just advocate campaign finance regulation and disclosure; you have to insist that the Federal Election Commission can ban books and movies.

I don’t think that my friends at Yale actually believe any of these positions. (They hold many false beliefs, but they are not insane.) Nor can they seriously believe that, but for their extravagant positions, we would hand over the country to Opus Dei, bind our wives’ and daughters’ feet, allow George Soros or David Koch to buy their very own Congressmen, or for that matter toss ailing widows and orphans into the streets. The real fear is that the Constitution might pose some limit to progressivism’s anything-goes imagination.

One could argue that the Constitution was enacted for precisely that purpose.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. Before coming to AEI, Professor Greve cofounded and, from 1989 to 2000, directed the Center for Individual Rights, a public interest law firm. He holds a Ph.D. and M.A. in government from Cornell University, and completed his undergraduate studies at the University of Hamburg. Currently, Professor Greve also chairs the board of the Competitive Enterprise Institute and is a frequent contributor to the Liberty Law Blog. Professor Greve has written extensively on many aspects of the American legal system. His publications include numerous law review articles and books, including most recently The Upside-Down Constitution (Harvard University Press, 2012). He has also written The Demise of Environmentalism in American Law (1996); Real Federalism: Why It Matters, How It Could Happen (1999); and Harm-less Lawsuits? What's Wrong With Consumer Class Actions (2005). He is the coeditor, with Richard A. Epstein, of Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (2004) and Federal Preemption: States' Powers, National Interests (2007); and, with Michael Zoeller, of Citizenship in America and Europe: Beyond the Nation-State? (2009).

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  1. says

    One question about this has confused me since the courts got involved. Am I right that one cannot buy health insurance across state lines? Me, or my New York employer, cannot buy health insurance from a New Jersey carrier, right? Changing that, in fact , is a reform that we conservatives would like to make to combat rising costs – more competition and all. Right?

    So as it stands now, or it did before OCA was passed, at least, there is/was no interstate commerce in health insurance. So how can Congress/Obama claim the right to step in and regulate it under the commerce clause through the OCA? Just askin.

  2. says

    “ (They hold many false beliefs, but they are not insane.)” — And what is your evidence for this conclusion, Michael? They sound pretty crazy to me.

    An excerpt from a work I have in progress:
    ” Those of us who want to rejuvenate legal doctrines and institutions to better protect our economic liberties against factional depredations are often accused of wanting to return to the nineteenth century.
    ” This accusation is the reverse of the truth. We want to learn from the experience of the twentieth century, which shows that removing all checks on government power does not result in wise rule by disinterested mandarins. It produces, in Michael Greve’s words, “an unstructured, undisciplined, exploitive interest group free-for-all”.
    ” These hard lessons should spur the legal profession to create mechanisms better adapted to the realities of the twenty-first century. It is our critics who refuse to recognize that law must evolve in the light of experience, as they cling to the failed political and legal dogmas of the Progressive Era, the New Deal, and the Great Society. They emulate the royal House of Bourbon after the French Revolution: ‘They have learned nothing and forgotten nothing.’ ”

  3. Colin Fraizer says

    “And the mandate was inserted in the ACA for one reason only—to buy the support of the insurance industry. A progressivism that can no longer tell the difference between a principled commitment and a give-away to special-interest hucksters has some explaining to do, not least to itself.”

    I don’t believe progressives see it that way. That is, sure, they understand that *this* mandate was included as a give-away to a special-interest, but they are, I believe, horrified at the notion that there is some limit to the powers of a well-intentioned Congress.

    I believe:
    1. libertarians see limits on Congress’s power as a feature.
    2. conservatives who accept such limits see them as a regrettable necessity.
    3. progressives see them as an outrage against moral decency.

    Fundamentally, I believe progressives actually inhabit the caricature painted by their opponents; for them, the Court is not an impartial decider of cases based on principles; it is a super-legislature that strikes out laws from “evil” motives. (Some conservatives believe the same thing–with a different definition of “evil”.)

  4. mick says

    The mandate is the socialized medicine part of the ACA. It is supposed to trigger a vast array of consequences that make socialized medicine occur. Without it the bill is just helping the poor, completely missing the progressive point.

  5. Duke says

    Query: if the constitution’s purpose does/did NOT include posing a limit, why write it down? England didn’t; it’s breakaway American cousins did. And further went through the difficult process of the citizenry at large ratifying those written words.
    Rhetorical of course.

  6. cas127 says

    A lot of liberal excess/insanity (among ostensible and certainly self-proclaimed intellectuals) boils down to the fact that many liberal policies are really much less about the objective results of such policies and much more about self-satisfaction.

    “I believe/proclaim x and y (and z and z’) *therefore* I am a better/more intelligent/morally superior person.” (“Pay no attention to that corpse behind the curtain”)

    This isn’t policy formulation (which looks at and anticipates *results*)…it is liberal self-pleasuring.

  7. Jeffersonian says

    I’d hope that the idea that fascism is a creature of the progressive Left would be coming into sharp focus for a lot of people these days.

  8. ThirteenthLetter says

    “Nor can they seriously believe that, but for their extravagant positions, we would hand over the country to Opus Dei, bind our wives’ and daughters’ feet, allow George Soros or David Koch to buy their very own Congressmen, or for that matter toss ailing widows and orphans into the streets.”

    Actually, my experience is that they do believe this.

    • says

      Scalia is definitely not a sticrt constructionist. And again, the problem with looking at the words in the Constitution and only the words is that words do not exist in a vacuum.The problem with #2, of course, is that in Brown, the Court was overturning Plessy and saying that Harlan was correct. So it makes sense to cite the dissent. Of course, the court was unanimous in Brown. No such dice with Scalia. Are you arguing that the Supreme Court should not be bound by its own precedents?

  9. Robert B says

    “Progressivism’s anything-goes imagination” is limited by the constitution only to the extent that it creates a barrier between the producer and the revenue ravenous state trying to confiscate his livelihood for his own good.


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