Bench Memos

A Swing and a Miss

I have to dissent from Roger Pilon’s praise of George Will’s column this morning, which is riddled with bad reasoning in defense of the proposition that the courts should strike down a key element of the pending health-care “reform” bill.”  This is no home run but a sad swing and a miss.  Once upon a time George Will could be counted on to resolutely oppose judicial activism, whether of left or right.  While not always embracing activism explicitly, he has taken recently to putting the phrase in scare quotes and slamming conservatives who take the problem seriously.  Or at least he slams us when we warn of its possible appearance on the right; he seems to remember it is a real problem when it appears on the left.  And today he simply redefines it, endorsing “judicial activism understood as unflinching performance of the courts’ role” as the protectors of “liberty” (his italics).

As I’ve noted before, Will’s recent fondness for the phrase “judicial activism” introduces unnecessary confusion into our constitutional conversation.  For those wedded to originalism, “activism” is never used to describe the exercise of judicial review, on appropriate occasions, in defense of rights that are actually established by our Constitution.  For originalists, that is, “activism” has always been a pejorative since the term was coined in the 1940s.  The only people willing to defend “activism” as a good thing are living-Constitution advocates, who believe judges should not be constrained by the text and historic meaning of the document, but should “do justice” and keep our constitutional order “in tune with the times,” while not worrying too much about traditional constraints on the uses of judicial power.  Activism’s defenders and critics agree on what it is; what they disagree about is whether it’s a good or a bad thing.

Will would be on stronger ground, therefore, if, instead of simply mocking concerns about “judicial activism,” he made a case that judicial invalidation of the health-insurance mandate would not be activism.  It’s pretty telling that he won’t or can’t do that.  For a guy who complains of activism’s critics having “more vigor than precision” in their arguments, his column has a lot of loud stamping of feet and not much of a case for judicial action in the case that concerns him.

I have to pause here to make a point often missed in these arguments: to be skeptical of the case for judicial review is not the same as to say that one sees no constitutional problems with a piece of legislation.  I see some of the same constitutional problems George Will sees with the proposed health-care legislation.  It represents a metastisization of government that legislators should oppose on constitutional grounds.  It may be unprecedented for the federal government to make it punishable not to engage in a commercial transaction–or any activity at all–as in the proposed requirement that everyone buy health insurance. 

But I hardly think that the insurance mandate is going to be enforced in the case of people who never go to the doctor (even under ObamaCare, will we have roving bands of federal health-insurance cops checking on whether we’ve bought ours?).  Most likely, the enforcement will come in when people actually seek health care, from doctors, hospitals, and other health professionals.  Then, of course, there is a transaction that can form the basis of a fine or other penalty for not having health insurance.  Is this a stretch, to say the least, under the commerce clause?  Yes.  Is it significantly more of a stretch than laws the courts have tolerated under that clause, with or without the aid of the necessary and proper clause?  I can’t see that it is.  Were the courts right to tolerate those earlier laws?  Will is cagey on that point; he’s just sure (on not much of a basis) that this new law is ever so much worse than anything we’ve seen before.  Roger Pilon is at least clear that he would have nullified lots of old laws the courts have upheld.  For my part, I would find it difficult to locate proper grounds for judicial nullification of such a requirement.

An alternative way for Congress to approach forcing people to buy insurance is simply to tax people who don’t have it at higher rates than those who do.  As Stuart Taylor notes in a National Journal column Will cites, this approach has been argued by Yale’s Jack Balkin, but Congress appears to be going with the commerce power instead.  Balkin and I have disagreed plenty in the past, but judicially invalidating such a use of the taxing power would be pretty hard to justify.  Is it constitutionally sound to use the taxing power to make such coercive inroads on people’s liberty?  No.  Does it follow that courts can and should come riding to the rescue?  Not at all.

What else has Will got?  Well, there’s the argument that goes like this: If Congress can regulate this, it can regulate anything.  This is an “if . . . then” proposition about future violence to the Constitution, parades of horribles that may not happen and whose logical connection to the present situation is asserted but not demonstrated.  The trouble with the argument always is that it completely fails to answer the question, what’s wrong with this?  Congress exercises, or claims to exercise, its taxing power, or its commerce power, or a power implied by either of them and authorized as “necessary and proper.”  The argument “this goes too far” and thus breaches the bounds of enumerated (or even implied) powers is a really good argument, even a really good constitutional argument, in a legislature or on the hustings.  But courts of law need to see injured rights that require vindicating.  And abstract propositions about constitutional principles don’t supply the needful in that setting.

Oh but wait.  Courts are our protectors of liberty, says Will.  My, now there’s a fine thing.  Will America be a less free country if current proposals for health-care “reform” are passed?  Yes.  Therefore judicial review is warranted.  Right?

Wrong.  This is a syllogism with no minor premise.  Show us the warrant in the Constitution for a general supervisory power of the courts over questions of how free our country is, and you’ll have one.  But you can’t, because it isn’t in there.  If you’d like to employ the “liberty” in the due process clause–a perennial favorite of judicial activists–you’ve just endorsed everything from Dred Scott to Roe v. Wade to Lawrence v. Texas.  Oh, you just want the good uses of the due process clause to protect the right instantiations of “liberty”?  Why didn’t you say so?  We’ll just find ourselves some nice activist judges who agree with us and not with the other fellows.

Roger Pilon at least recognizes that the premises for his preferences aren’t to be found in the Constitution.  Hence he desires the judicial enforcement of the Declaration of Independence.  Somehow I am not reassured.

Will thinks he’s got some kind of grand-slam argument when he writes: “If Congress does something beyond its constitutional powers, that something does not become constitutional merely by Congress saying it is necessary for this or that.”  This is a true but banal statement.  Here’s an equally true and not banal one: If Congress does something beyond its constitutional powers, that something does not become a fit subject for judicial correction of congressional bad behavior merely by the Supreme Court saying that it does.

In the American universe of potential injustices, there are run-of-the-mill political problems.  Then there are constitutional problems.  Then there are constitutional problems with judicial solutions.  Will and Pilon want to collapse the second and third categories into each other–and accuse those of us who see all three categories with collapsing the first and second together.  This is because their idea of constitutionalism is inseparable from an attachment to judicial supremacy.

When you’re this attached to judicial supremacy, your antibodies against judicial activism are fatally weak.  And when it comes to the courts, our history amply teaches us to be careful what we wish for.