The Agenda

The Constitutional Question

Dylan Matthews has written a terrific post on the truth about the Supreme Court:

Ultimately, the academic discussion of this doesn’t matter unless it’s considered by people who actually hold the power to undermine the individual mandate, most notably Anthony Kennedy. In practice, I suspect Kennedy will pay some attention to the debate, but he’s certainly not obligated. Kennedy could endorse Mark Tushnet’s view that Supreme Court justices should rule in ways that “advance the cause of socialism” and there’s nothing much anyone could do about it.

Given relevant precedents on federal regulatory power, especially 2005’s Gonzales v. Raich, where the court ruled that the federal government could regulate the state-level sale of medicinal marijuana, it seems unlikely that the court will take any action against the individual mandate. All the court’s liberals, along with Kennedy and Antonin Scalia, ruled in favor of the federal government in that case, and two of the dissenters, William Rehnquist and Sandra Day O’Connor, have since been replaced, and John Roberts and Samuel Alito seem to take a more moderate view of the federal government’s right to regulate interstate commerce. At the very least, Scalia and Kennedy are likely to side with the court’s four liberals should an individual mandate case come up, meaning the mandate should survive, easily.

Basically, we had a limited government until 1937. Then, after the court-packing imbroglio, we no longer had a limited government. In my view, this is a very bad thing. The death of the nondelegation doctrine and the concept of a federal government limited in its scope to a fairly narrow set of enumerated powers has hollowed out what was a system of government that was unusually conducive to freedom, local democracy, institutional creativity, and much else besides.

To be sure, the pre-1937 U.S. was a country plagued by cultural pathologies, political dissension, and economic deprivation, yet it was also a country that had the institutional tools it needed to address its most pressing problems. For a wide variety of reasons, some of them having to do with the exigencies of armed conflict and the perceived threat posed by radical political movements, we abandoned one set of institutional tools, and institutional restraints, for a kludgy hybrid that has proven deeply dysfunctional, yet not so dysfunctional as to completely smother the forces of creativity and economic progress. Or at least that’s my stylized take on it. 

This doesn’t mean that deploying constitutional arguments is useless. The idea of a “constitution-in-exile” is a powerful and potentially constructive one. In my experience, conservatives tend to dislike the term, first coined by Douglas Ginsburg in Regulation and revived by liberals who condemn right-of-center efforts to restore the idea of a limited constitutional government. I like it, not least because it connects contemporary conservatives and libertarians to a usable past. Restoring a system of competitive federalism will likely require a program of conservative judicial activism, as Michael Greve has argued. But let’s not kid ourselves: none of this is very likely, at least not in the short term.

Added wrinkle: as Jeremy Waldron argues in his excellent book Law and Disagreement, what we have, under our system of judicial review, is a democracy of judges; that is, the shape of our rights is determined by majority decisions not among all rights-bearing individuals in our society or elected representatives, but rather by a majority on a panel of judges. Which is absurd. Under a limited constitutional government, there is at least a case for this: the central work of the court is policing the boundaries between the different levels of government, with robust, republican, majoritarian government happening at the level of the states. 

Reihan Salam is president of the Manhattan Institute and a contributing editor of National Review.

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