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.