Posted by Randy Barnett:
Professor Jost Replies:
http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1253367479
On The Politico's Arena, Professor Timothy Stoltzfus Jost, of
Washington and Lee, [1]replied to my Politico post on the
constitutionality of a health insurance mandate (that I reproduced
here yesterday):
I interpreted Fred's question to ask whether the current Supreme
Court would uphold the constitutionality of an individual mandate,
not to ask my for my personal views of the Constitution. I would be
willing to wager with Prof. Barnett that the Supreme Court would
uphold such a mandate given the Court's expansive reading of the
Commerce clause. In fact, I don't think the vote would be close.
[2]Here is my response:
I thank Professor Jost for his clarification. I find his
interpretation of the question, "Is 'mandatory insurance'
unconstitutional?" illuminating of how most constitutional law
professors, along with politicians and commentators, view the
Constitution. The question did not expressly ask for a prediction
of how the Supreme Court would rule, unless you assume that the
Constitution actually means whatever the Supreme Court says it
means. According to that view, you could not criticize however the
Court decides because there is no external standard against which
to assess the constitutionality of a statute. But we do have such
an external standard: the written Constitution.
Asking whether "mandatory insurance is unconstitutional" is not
asking for a "personal opinion" on constitutionality but for a
professional opinion on the proper meaning of the Constitution. The
answers to this question given by my co-blogger Jon Adler and by
Mark Tushnet represent a professional opinion about the meaning of
Supreme Court precedents--such as Gonzales v. Raich--not the
Constitution itself. Assuming that Supreme Court precedents
constitute "the Constitution" empowers long dead judges to rule us
from the grave. Sorry, that is hyperbole. It allows the opinions of
justices to trump the meaning of the written Constitution.
Under our system, the Supreme Court has the last word on whether a
statute challenged as unconstitutionality will be upheld or
nullified. But it does not have the power to change the written
Constitution, which always remains there to be revived when there
is a political and judicial will to do so. For example, after the
Supreme Court gutted the Fourteenth Amendment during
Reconstruction, it remained a part of the written Constitution for
a future more enlightened Supreme Court to put to good use. By the
same token, the current Supreme Court can still make serious
mistakes about the Constitution. Because the Constitution is in
writing, there is an external "there" there by which to assess its
opinions.
But there is one final twist: if the Supreme Court adopts a
"presumption of constitutionality" by which it defers to the
Congress's judgment of the constitutionality of its actions--as it
has and as "judicial conservatives" urge--and the Congress adopts
Professor Jost's view that "unconstitutionality" means whatever the
Supreme Court says, then NO ONE EVER evaluates whether a act of
Congress is or is not authorized by the Constitution. A pretty neat
trick--and a pretty accurate description of today's constitutional
law.
References
1.
http://www.politico.com/arena/perm/Timothy_Stoltzfus_Jost_DBA89F31-83E1-4E36-9EFE-3FED0FEF31DB.html
2.
http://www.politico.com/arena/perm/Randy_Barnett_EE115BB3-6651-4B8E-A8F2-1F1A5660B087.html
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