Legal Commentary

Claeys on Obamacare and the Limits of Judicial Conservatism

By David Bernstein

My colleague Eric Claeys has a very interesting piece in National Affairs. The hook is the future USSC decsion on Obamacare, but the meat of the piece is an explanation of the divergent strands of modern constitutional conservatism:

To understand contemporary ?judicial conservatism? and its ambiguities, it is helpful to describe it as a series of reactions against the ?living Constitution? approach that was employed by the Warren and Burger Courts from the early 1950s to the 1980s. The Warren and Burger Courts handed down many landmark decisions declaring new constitutional rights relating to abortion, compulsory school integration, prayer in schools, the procedural rights of criminal defendants, and the death penalty. According to its critics, the living-Constitution approach reflected in these decisions mistakenly downgraded the original meaning of constitutional text, treated precedent too casually, and encouraged federal courts to usurp the legitimate discretion given to political officers to make sensitive policy judgments.

These three criticisms aligned and overlapped as applied to the Warren and Burger Courts? major decisions. Yet these criticisms do not converge in every case. They diverge especially when the issue is not a new right declared by the Court but an act of Congress that strains the Constitution?s structure. In such a case, should a conservative judge invoke the judiciary?s power to protect the Constitution?s original meaning ? or worry that such power forces him to second-guess Congress?s political choices?

As Claeys points out, over the Supreme Court?s conservatives, only Justice Thomas has come even remotely close to being a consistent originalist.

The only thing missing in the piece, I think, is a discussion of whether the virtual consensus in conservative circles (sorry, Orin) that Obamacare goes ?too far? for constitutional purposes will affect the Justices? ruling. To say the least, when the Court decided Gonzales v. Raich in the middle of the Big-Government Bush presidency, there was neither a consensus among conservative types that the federal government should be limited in general, much less that any such limits should apply to marijuana laws. To the extent that the Justices vote, as they generally do, consistent with the very strong preferences of the coalition that put them into power, Obamacare may get more negative votes than one might think. (Put another way, if President Bush had signed a law like Obamacare passed by a Republican Congress, opponents of the law would be lucky to get even Thomas?s vote.)

But the controversy over Obamacare aside, the piece is well worth reading in full.

Full post as published by The Volokh Conspiracy on June 27, 2011 (boomark / email).