June/July/Aug 2012

Health Scare

Dahlia Lithwick


Over the last week of March, the United States Supreme Court heard three days of arguments over the constitutionality of the Affordable Care Act (ACA)—President Barack Obama’s historic health-care reform law. This means that sometime during the last week of June 2012, the justices will hand down a decision in that case that, regardless of the finding, will move the court to the epicenter of the national debate about government and power. Based on those oral arguments, the high court seemed prepared to strike down at least the “individual mandate”—the requirement that nearly all Americans obtain health insurance or pay a penalty—if not the law in its entirety. When the decision arrives, historians can begin to weigh in on whether all this represents the court declaring war on President Obama, or President Obama declaring war on the court.

Meanwhile, during the apprehensive weeks between March and June, America tried to wrap its arms around the idea that it doesn’t much care for the ACA—together with the prospect that the Supreme Court would strike down a landmark piece of social legislation for the first time in seventy years. In political terms, the choice seems to be between an overreaching Congress and an overreaching court, and the ultimate gamble is over what kind of overreach the public prefers.

Against the backdrop of this tentative soul-searching, some of the country’s most prominent legal scholars gathered at Yale Law School at the end of April to talk about constitutional interpretation. The gathering was occasioned by a recent book, Living Originalism (Belknap Press, $35), by Yale Law professor Jack M. Balkin, one of the foremost constitutional thinkers in the country. As its title suggests, Balkin’s book is an effort to wed originalism (the idea that the Constitution means what the eighteenth- and nineteenth-century framers thought it meant) to living constitutionalism (the idea that the Constitution must change and adapt to the needs and values of successive generations). Balkin’s proposed solution to the interpretive impasse is called “framework originalism,” which views the Constitution as—yes—a framework for governance. Over time, he maintains, the framework gets filled by Americans who read the document and adhere to a methodology that applies the original text to current circumstances. The trick, of course, is that the methodology in question may have either very much or nothing at all to do with the original intent of the framers. The book is a brilliant culmination of Balkin’s lifelong work in constitutional interpretation, but the problem is that the era of fighting over constitutional interpretation may be over—at least if the oral arguments over the Affordable Care Act are any indication.

In part this era may be over because, as Ronald Dworkin (and before him, Emory professor Michael J. Perry) have explained, “we are all originalists now”—a formulation that now wins wide assent in the legal academy. The notion that conservative jurists faithfully adhere to the original intent, text, and meaning of the document, while liberals wear love beads and make things up, was put to rest as an empirical matter when both the majority opinion and the dissenting justices used originalist methodologies in the 2008 case District of Columbia v. Heller, which invalidated DC’s handgun ban. Most serious legal thinkers now acknowledge that some combination of textualism and original intent is the building block of any interpretive theory—together, of course, with some requisite party tricks for addressing ambiguity and textual silence. In other words, the idea that judges adhere studiously to one method or the other can only command assent on cable-news panels.

And yet, just as the academy has moved beyond the battle over original intent, many Americans are talking more loudly about the framers and the Constitution than they have in decades. The Tea Party has made arguments about reclaiming the Constitution a fundamental part of its campaign to restore the virtues of the early Republic to the American scene—so much so that one of the movement’s lead organizing groups, the Tea Party Patriots, states outright that “we believe that it is possible to know the original intent of the government our founders set forth, and stand in support of that intent.”

This popular embrace of originalism is a dramatic shift in popular thinking about the Constitution and the law. As Jamal Greene, Nathaniel Persily, and Stephen Ansolabehere argued last year in the Columbia Law Review, when growing numbers of Americans describe their approval of originalism, they are talking not so much about a specific interpretive methodology as about a theory about the rule of law and judicial constraint. In a pathbreaking series of surveys about American views on the Supreme Court’s reliance on original intent, Greene, Persily, and Ansolabehere learned that one of the major sources of originalism’s popular appeal is the belief that the doctrine has “not just an inherent disciplinary value for judges” but also rewards individual self-reliance. As the authors conclude, the results of their polling show that there may well be “a political market for judicial constraint.”

This means, in essence, that Americans who have fallen in love with conservative interpretive methodologies have chiefly rallied to a decades-long political message from the Right holding that judges are unrestrained and unaccountable. Just as the legal academy has effectively debunked the divide separating originalists from the living constitutionalists, ordinary Americans have embraced it—not so much because it leads to specific policy outcomes (although it often does) but because they view it as a mechanism to curb an out-of-control judicial branch.

This would be a fascinating political occurrence in itself were it not for the current Supreme Court’s pronounced and curious lack of interest in matters of constitutional interpretation—strict construction, textualism, living constitutionalism, or otherwise. Indeed, the most noteworthy aspect of the court’s three-day discussion of the ACA, and the limits on Commerce Clause power under the federal Constitution, may have been the interpretive debate that took place at the Tea Party rallies outside the court. This constitutional discussion, ideologically driven though it was, proved as nuanced, if not more so, than some of the sound bites and talking points thrown about inside the chamber.

In the end, it was Justice Antonin Scalia himself—the man who has made rigorous constitutional interpretation the lodestar of his intellectual career—who spoke breathlessly of a future government that forces Americans to purchase broccoli, the so-called Cornhusker kickback (awkwardly sutured onto the ACA bill to win the support of conservative Democratic senator Ben Nelson), and the absurd expectation that the justices read 2,700 pages of health-care legislation. Almost completely absent from the debate was any discussion, from justices or advocates on the left or the right, about constitutional text, original intent, or original public meaning. Far more frequent were the types of issues that dominated the Columbia Law Review’s survey results—questions about government power, regulation of “activity” versus “inactivity,” and perilous congressional overreach.

It has been increasingly apparent at the Supreme Court that there are few “real” originalists among its members. Even Scalia has called himself a “faint-hearted originalist.” In a showdown last year over children and the right to regulate violent video games, Justice Samuel Alito observed rather snarkily at oral argument, “What Justice Scalia wants to know is what James Madison thought about video games.” And that, it seems, was the end of James Madison. The split between originalists and living constitutionalists at the high court may now be as much a relic of the intellectual past as it is in much of the legal academy.

No one disputes that if the court strikes down all or part of the health-care law in June, it will be the most dramatic judicial act since 1936: bigger than the Nixon tapes or the Paula Jones ruling, and bigger than Bush v. Gore. One can debate whether such a ruling would be warranted, but not whether it would be the most activist thing the court has done in modern history. When FDR waged his war against the Supreme Court, he was fighting what he characterized as judicial intransigence. But if President Obama opts to take on the Roberts Court, he would be decrying judicial activism. That means that if the court does decide to kill health-care reform, its bet won’t rest so much on the salience of states’ and individual rights versus federal power; rather, the justices will likely calculate that Americans hate Obama’s health-care law more than the prospect of unbridled judicial activism.

Nobody knows yet whether that’s true. But commentators have largely framed the legal dispute here as an argument over originalism when it is, in fact, over which branch of government Americans hate and mistrust most.

At the Living Originalism conference at Yale, one scholar after another took turns bemoaning the Left’s failure to advance winning constitutional arguments—over the three days of the health-care arguments, during the two years since the law was passed, and over the thirty years since “originalism” became the only viable way to talk about the Constitution. Speakers wondered why the Obama administration has distanced itself so firmly from the liberal legal academy. Students queried why Tea Party activists carry copies of W. Cleon Skousen’s 1981 book The 5,000 Year Leap (which argued that the founders were divinely inspired by principles derived from the lost tribes of ancient Israel who populated the Book of Mormon) and Occupy Wall Street protesters don’t think about the Constitution at all.

Indeed, liberal constitutional thought has for so long obsessed over its own PR failures that it took a leading conservative legal thinker, Michael McConnell, to scold the audience into recognizing just why it is that originalism inevitably wins out over progressive jurisprudential theories. “You talk about originalism like it’s a tactic,” he said. “Originalism is not a tactic. Conservatives actually believe it.”

The question that will linger beyond the fallout from the ACA ruling is whether conservatives still believe in the originalist cause. That belief may be suspended in part because a more activist ruling in the ACA case could yield economic results agreeable to many conservative interests—a decision against the ACA might return the country to the Lochner era, when the court struck down federal laws that, among other things, ended child labor and created the minimum wage. But the real calculation behind a new conservative alignment may, in the end, be political, if not tactical in the strict sense of the term. In other words, going forward, the question may well be whether the real beauty of originalism lies in restraining out-of-control jurists—or in how handily it destroys liberals.

Dahlia Lithwick is the Supreme Court reporter for Slate.

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