Legal Commentary

Are there Areas of Consensus Among Constitutional Law Scholars?

By Ilya Somin

Orin?s follow-up to my post arguing that there is no expert consensus on the constitutionality of the health care mandate suggests that there are virtually no real areas of consensus among constitutional law scholars, and that ?you can pretty much always find someone to say a controversial law is unconstitutional.? It is probably true that you can always find at least one person to say that. But it?s not true that there are no areas of overwhelming consensus, including consensus on politically controversial issues. Expert consensus does not require absolute unanimity, merely an overwhelming preponderance of professional opinion that cuts across ideological lines. For example, there are virtually no serious legal scholars who endorse claims that the income tax is unconstitutional, despite its popularity among some right-wing political activists and others (e.g. ? Wesley Snipes). Likewise, most liberal constitutional law legal scholars disagree with claims that the Iraq War was unconstitutional, even though most of them believe the war was immoral or unwise. A less important but still interesting example: a wide range of con law scholars across the political spectrum support the view that Congress has the power to force federal courts to let their oral arguments be televised, despite the vehement opposition of the Supreme Court justices. There are other areas where the consensus is less overwhelming, but still cuts broadly across ideological lines. For example, even many conservative legal scholars such as Jack Goldsmith and my frequent coauthor John McGinnis, rejected the Bush Administration?s claims to virtually unlimited wartime executive power, as did nearly all liberal and libertarian ones.

The health care mandate doesn?t fall within either of these categories. The overwhelming majority of liberal scholars believe that it is constitutional, while the overwhelming majority of conservative and libertarian ones (especially those of us who study federalism or the Commerce Clause as our main focus) believe otherwise. Therefore, neither side can claim there is a cross-ideological consensus of experts supporting its position. This is noteworthy for several reasons, including the fact that there are important constitutional law issues where a broad expert consensus does exist.

UPDATE: The original version of this post misidentified Will Smith as the actor who claimed that the income tax is unconstitutional. In reality, it was Wesley Snipes. I apologize for the error.

Full post as published by The Volokh Conspiracy on December 24, 2009 (boomark / email).