Posted by Randy Barnett:
"Constitutionality" and the Real Constitution:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253566626
I agree with the predictions of my fellow conspirators: When deciding
whether a Congressional mandate to buy private insurance is
"constitutional," the Supreme Court will likely ignore the
Constitution. And since this mandate is unprecedented, their actions
won't be dictated by their precedents either, even if they were
inclined to follow their precedents when they don't want to, which
they aren't. But all this evades my original disagreement with
Professor Jost that Orin though was resolved by his is-ought
distinction between "what the Constitution is" and "what the
Constitution ought to be."
Professor Jost wrote two things that got my attention. Thing #1 was
his reference to those who cite the Tenth Amendment as "Tenthers." In
response, I cited the first sentence of Article I, and the Necessary
and Proper Clause as reiterating the view that Congress only has the
powers "herein granted" or "vested by this Constitution in the
government of the United States, or in any department or officer
thereof." So Supreme Court doctrine that, in effect, finds no limit to
Congressional power must disregard not one, not two, but three
explicit passages of what many Americans still naively believe to be
"the Constitution."
Thing #2 was the following statement: "a basic principle of our
constitutional system for the last two centuries has been that the
Supreme Court is the ultimate authority on the Constitution, and the
Constitution the Court now recognizes would permit Congress to adopt
health care reform." In this passage, Professor Jost articulates the
view of most con law professors--including Orin apparently--that "the
Constitution" is what "the Court now recognizes" so the answer to the
question of "constitutionality" is to engage in predicting how the
Court will rule.
I reject the proposition that "the Constitution" is whatever the Court
says it is or, more accurately for present purposes, how the Court may
rule in some future case. I insist that "the Constitution" is the
wording of the document under glass in DC. So whether something is
"constitutional" depends on what "the Constitution"--the real
one--says. (Of course, because the written constitution does not
answer all questions to which we need answers, constitutional
construction is needed to supplement constitutional interpretation.
But such construction may not contradict what the Constitution--the
real one--says or that construction is itself unconstitutional.)
Whatever basis Orin, Ilya, David or I have for our predictions of
future Supreme Court decisions, there is one thing on which none of us
rely: the Constitution, the real one. Not the Constitution as it
"ought to be" but the Constitution--or "this Constitution"--the
enacted one, the one that thousands of Americans visit each year.
In support of his reasonable prediction, Orin offers the following
equally reasonable proposition: "If there is a federalism issue that
doesn�t have a lot of practical importance, there�s a decent chance
five votes exist for the pro-federalism side. . . . As soon as the
issue takes on practical importance, however, the votes generally
aren�t there." But what type of proposition is this? Is it "the
Constitution"? Is it even "constitutional law"? If it is neither, then
I do not see how it is responsive to the question of whether a mandate
to buy private insurance in constitutional, unless one redefines
"constitutional" to mean "whatever the Court can be predicted to
rule." THIS is what Orin calls a "semantic" issue, which it is, but it
is not merely semantic. It is also substantive and very important
issue to boot.
If "the Constitution is what the Court says it is," why did Justice
Sotomayor repeatedly insist she would follow the law, and that
following the law was all a judge should do? Did she secretly mean "I
will follow the law, which is exactly the same as how I may want to
rule for political and policy reasons"? OK, she did secretly mean
that, but why keep it a secret?
Could it be that, had she admitted what Professor Jost, and apparently
Orin, thinks is obviously true about "constitutionality," SHE WOULD
NOT HAVE BEEN CONFIRMED AS A JUSTICE? I think that is a pretty safe
prediction. Indeed, I predict that she and the White House actually
made this very prediction, which explains her repudiation of
everything constitutional law professors believe about
"constitutionality."
Why would this prediction have been so safe--even safer than Orin's,
Ilya's, David's, and my prediction about a future Supreme Court ruling
about a health insurance mandate? Maybe because, unlike law
professors, the American people still believe that "the Constitution"
is the words on that piece of parchment, and that "constitutionality"
depends on what those words say. True, many Americans do not know what
it says, but that does not changed the brute social fact of what the
Constitution still IS. Hence Justice Sotomayor's testimony that she
will follow the words.
So here is my question: if Orin and Jost are right, why not come out
and testify to that position under oath: That "constitutionality" is
what the Supreme Court says it is unconnected from what the
Constitution actually says? And until that happens, maybe the
Constitution still IS the words on the parchment under glass that most
Americans believe it to be. And if this is true, then does not
"constitutionality" depend on what those words say--including the
Tenth Amendment--regardless of how the Supreme Court can be predicted
to rule, and regardless of whether the Supreme Court follows the words
of the Constitution--the real one.
Let me close by repeating something else I posted on the Politico that
lies at the very heart of this debate:
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.
This point is so important that I should repeat it. Then it comes to
the enumerated powers of Congress, the Supreme Court should defer to
Congress's assessment of constitutionality (because of judicial
restraint); and Congress should defer to the Supreme Court's
assessment of constitutionality (because "the Supreme Court is the
ultimate authority on the Constitution"). So NO ONE SHOULD ACTUALLY
INTERPRET THE CONSTITUTION! This is current American constitutional
"law" in nutshell.
I kid you not.
[PS: Any academic reader who reads the above as claiming that the
"real" Constitution is the written one because it says it is "the
Constitution" should reread the portion about Justice Sotomayor's
confirmation testimony.]
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