Our Stubborn Constitution Versus Obamacare

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The reaction to last night’s decision by a federal district court in Florida striking down the Obamacare legislation reveals something surprising: liberals revere the Constitution more than conservatives.

It is often said that conservatives revere the Constitution as if it were a holy writ, infallible and nearly divinely inspired. Conservative rhetoric often supports this interpretation: my old professor Harvey Mansfield used to advocate thinking of the founding fathers as demi-gods.

In reality, however, it’s not the conservatives who revere the Constitutiion—it’s the liberals. They assign it an almost omniscient and omnipotent power: it is always on the side of the right policy. It never goes wrong. When conservatives insist that some policy crafted by liberals is unconstitutional, liberals almost invariably react by saying that conservatives are misreading the Constitution.

This is obvious in the responses health care decision. Judge Roger Vinson’s ruling held that the requirement that individuals purchase health insurance over-stepped the federal government’s authority to regulate interstate commerce. The refusal by an individual to buy insurance does not constitute an activity affecting interstate commerce, and therefore it cannot be regulated by the federal government under the Commerce Clause of the Constitution, Vinson held.

At the heart of this holding is the idea that the Commerce Clause authorizes only limited uses of federal power—those that can fairly be characterized as regulating interstate commerce. Interpretations of the clause that would logically obliterate this limitation and authorize unlimited regulatory powers, therefore, must be wrong.

The liberal response to this has been to express bewilderment as to how Vinson could hold that forgoing insurance is not a commercial activity while also holding that the individual mandate was a necessary part of the universal health insurance scheme Congress enacted. If Congress can constitutionally enact universal health insurance and force health care companies to cover those with pre-existing conditions—and if an individual mandate is necessary to this plan to prevent free-riders from driving the costs through the roof—how can the individual mandate not be constitutional?

In short, liberals assume that the Constitution is a perfect document under which anything necessary to achieve a desirable end must be permitted.

Now, of course, not all liberals think this way. I had a liberal law professor who believed that private ownership of handguns was too dangerous to be permitted but who also thought that the Constitution granted this right. Another professor—or maybe it was the same guy, I can’t recall exactly—thought that we should enjoy the broadest possible freedom of the press but that the Constitution only protected against prior restraint. But these kinds of opinions tend to be held exclusively by academics.

Vinson’s view of the Constitution stands in stark contrast to the liberal view. His Constitution is something like a union laborer who knows that his work rules prevent the bosses from requiring that he do certain things, so he just won’t do them. It is the Constitution that sometimes seems to arbitrarily say “No” to our best laid plans.

This can be especially annoying to the sorts of people who demand that only reasonable positions be given a place in public policy. If you are the type who thinks that the best argument should always prevail, and that public policy should be conducted according to publicly available reasons, having a stubbornly silent Constitution that refuses to give reasons and simply says “No” seems irrational.

The question that follows from this is whether or not we should be bound by a seemingly irrational Constitution or simply refuse to be bound by it, and just follow the best public policy arguments available. Some version of the negative answer to the question of being bound by the stubborn Constitution informs the liberal approach to constitutional interpretation: they want to read the constitution in a way that permits almost any desirable public policy without explicitly rejecting the constitution as a grounds for decision making.

So let me offer a defense of the stubborn Constitution. The demand that the Constitution be rejected explicitly—or covertly rejected by interpreting it as a “living document”—rests on the idea that our public policy should be based on the best publicly available reasoned arguments. But this idea over-estimates the ability of our reasoning to predict the future consequences of government action. The stubborn Constitution is justified by a recognition of our cognitive limitations.

To put it slightly differently, the stubborn Constitution refuses to recognize the sovereignty of our prevailing viewpoints over public policy. Instead, it reserves certain matters from being centrally decided in a way that ensure that we won’t adopt regulations that homogenize actions around theories that almost certainly do not fully anticipate their interaction with other regulations and changing circumstances. It allows us to centralize behavior through regulation only in limited ways.

Let’s return to the immediate debate around health care. If the individual mandate is a necessary part of health care reform, but the individual mandate is prohibited by the Constitution, then our Constitution makes health care reform impossible. It does this in the same way and for the same reasons it makes so many other actions by our government out of bounds—as a check on the prevailing perspectives of the day which are masquerading as political wisdom.

The proponents of an individual mandate argue that health care reform is so important that it should not be set aside because of antiquated formalist requirements. The response is simple enough: the Constitution does not recognize our views of what is important as sovereign. In fact, it places stubborn barriers in the path of our attempts to enact our views into federal policy.

I began by arguing that the liberal reveres the Constitution. But now I’ll modify that: the liberal reveres the ability of reasonableness to indicate correct policy, and believes we should interpret the Constitution in light of this. Vinison’s view of the Constitution as imposing perhaps unreasonable decisions is justified by a recognition that our own views of what is and isn’t reasonable are often much shallower than we suppose.


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