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But can any serious person believe there are five votes?

By Jack M. Balkin

Jack notes below the "inevitable" move of those opposed to reform of our medical care (or, for many, medical non-care) system to the plane of constitutional law. He notes the reliance on a 1919 case, which in turn relied substantially on the infamous case of Hammer v. Dagenhart (1918) that held child labor laws to be beyond Congress's power. And, of course, the Old Court that battled the New Deal relied on these cases and such classic distinctions as "commerce" v. "manufacture" and, even more to the point, "direct" and "indirect" effects on commerce. (The current majority returned, in effect, to the latter in the infamous Morrison case invalidating parts of the Violence Against Women Act because domestic violence isn't actually a "commercial activity"; it "merely" affects commerce, but if you allowed that to count, then nothing would be protected against congressional control unless it's explicitly protected by the Bill of Rights.

So what the opposition will do is proclaim that it's time to take the "real" Constitution out of exile and return to the pre-1937 understanding. Jack says he'd love to debate that, as would many of us, but what would be the point? Is it "crazy" to argue that the New Deal was unconstitutional? Not really, depending on your theory of the Constitution. After all, Jack's great colleague Bruce Ackerman basically agrees that the New Deal required a constitutional transformation, a "non-Article V constitutional amendment," and I basically agree. And, like Ackerman, I see no problem with that since otherwise our constitutional order would be even more dreadful than I think it is (since Ackerman, for all of his brilliance, simply ignores the fact that our "hard-wired" structural constitution isn't really amendable to clever "workarounds" or, at least so far, similar kinds of "constitutional moments" as we saw during the New Deal.

There are certainly "respectable people" in the legal academy--begin with Richard Epstein and go on to Randy Barnett or Ilya Somin, in the next generation, not to mention the Cato Institute contributors to the very interesting The Dirty Dozen--who argue that the New Deal was unconstitutional, and I assume that Jack wouldn't flunk them in a Con Law I course, at least so long as they admitted that they've long since lost that battle in the Supreme Court. But, after all, I know that Jack, like myself, believes in "constitutional interpretation outside the courts," so it really isn't dispostive as to "possible constitutional arguments" that there is no judicial support for a given proposition. But, for better and, I believe, worse, most Americans have been trained to believe that "the Constitution is what the Supreme Court says it is." So what must proponents of "the unconstitutional medical plan" really be thinking if they are making an argument that they expect to be taken seriously by the general public and not merely by constitutional theorists?

The answer is simple: They have to posit that there are five votes on the current US Supreme Court to adopt Bailey and other pre-1937 relics in circumstances like the following: Obama and his allies have successfully surmounted both the institutional obstacles created by our hard-wired Constitution (e.g., the ridiculous power given in the Senate to provincials like Max Baucus and Olympia Snowe and the other members of the "gang of six," who represent, in toto, 2.77% of the entire American population) and the additional veto points created by the absurd filibuster rules. This will happen, as was the case with the Civil Rights Act of 1964, if and only if there is real support among the general public that insists on some kind of significant change. That, after all, is why hundreds of millions of dollars are being spent even as we speak on television ads (and twitters) to capture the public.

So imagine that such a bill passes and then diehards ask the courts to invalidate it. Is that really imaginable. For starters, could they count on Scalia, given his vote in the medical marijana case? Kennedy believes in the "dignity of states." But is he really willing to become George Sutherland at this stage in his career. Will John Roberts really want to make Bush v. Gore look like a tea party (given what we knew and didn't know in 2000 about George W. Bush's utter unfitness to be President of the United States) by dooming a widely-accepted reform? Ask yoursekf if there would have been five votes against the Civil Rights Act in 1965 had Congress predicated it on Section 5 of the Fourteenth Amendment, the preferable route, instead of the doctrinally easier Commerce Clause, which easily got nine votes? Maybe Harlan would have chosen to be a doctrinal purist and dissented, but how much would one want to bet on that proposition?

My own view is that I'd love to debate the mossbacks while wearing my political scientist hat, while Jack can, very ably, wear his law professor-doctrinalist hat. And that's because I view as almost truly frivolous the belief that the courts will--or ought--to take on both Congress and the President with regard to something so basic as medical reform.

Full post as published by Balkinization on August 22, 2009 (boomark / email).