Posted by Randy Barnett: Really? Really?? http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253495548
OK, I totally get the whole IS-OUGHT distinction thing. The Constitution IS what the Supreme Court says it is. The Constitution OUGHT TO BE what the text says. Although a little jurisprudentially sophisticated for my taste, I think I grasp this. But let me ask what has to be a simple question for my more "realist" compadres. Do they see no difference between using the power over interstate commerce to prohibit the growing of an intoxicating plant and mandating that every man, woman and child buy a service from a private company or face a hefty fine? Not make the purchase of this service a condition of engaging in some activity--like driving--but a condition of breathing itself. Not make you "contribute" to a universal government social welfare program--like Social Security or Medicare--but buy a service from a private company. What if these companies all happen to be restricted to operating intrastate? Still all the same? Is there a clear precedent for exercising this kind of power over all individual citizens--hey and noncitizens too!--by virtue of them being alive? No? Well then maybe this case would not be dictated by the "law" of Gonzales v. Raich governing the production of fungible goods that Congress is seeing to ban from interstate commerce. But supposing there is a precedent--which for all I know there is--do my realist friends think the justices always follow their own "law" when they really don't want to? Really? So what "constitutionality" really comes down to is whether five Justice have the, er, nerve to strike down a popular act of popular Congress a la the Evil Old Lochner Court. Fair enough. But how about a not-so-popular act of a not-so-popular Congress by the time the case reaches the High Court? What if the Repubs take back the Congress by then? Or just the House and knock off the Senate Majority Leader? Do all realist predictions about "constitutionality" remain the same? And if, to assess its constitutionality, we have to calibrate the popularity of the law and/or law maker--count the election returns, as it were, in advance of an election--before making our prediction on what the Constitution "says," does this tell us anything about the constitutional law game in our fair republic? Of course, the safe money is always on the Supreme Court upholding an act of Congress. ALWAYS. And the even safer money is on the four "liberal" justices upholding ANY exercise of federal power that liberals happen at the moment to favor. OK, "conservatives" too with respect to executive power when their guy is in the White House--or laws that liberals happen to favor at the moment. All our justices are New Dealers; they all repudiate Lochner (or Schechter Poultry). I realize this is all very legalful and constitutionally and all, with its irrebuttable "presumptions" and hypothetical "rational bases" and myriad whatnot. Let's all crack open our virtual copies of the United States Reports and figure this sucker out. However, in the absence of any clear super precedent, are my more realist colleagues absolutely confident that the four more "conservative" justices--and maybe even Justice Kennedy who cares something about liberty when it does not involve drugs--won't see some "principled" difference between a federal prohibition against growing something both fungible and intoxicating and a universal federal mandate to buy a service from a private company? Really? Really?? _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
