Legal Commentary

The Myth of an Expert Consensus on the Constitutionality of Anything

By Orin Kerr

As a minor follow-up to Ilya?s post below on the lack of consensus among constitutional scholars about the constitutionality of the individual mandate, I would ask a question: Is there a consensus among constitutional scholars about the constitutionality of anything? The only thing I can think of is Brown v. Board. Everyone agrees school segregation is unconstitutional. Beyond that, the consensus seems to break down: No two constitutional scholars have the same theory of what the Constitution allows, and you can pretty much always find someone to say a controversial law is unconstitutional.

As for the constitutionality of the individual mandate, my sense is that if we?re more precise we end up with conclusions something like this: (a) it?s constitutional if you follow existing judicial precedents, (b) it may or may not be constitutional if you follow a particular theory of constitutional interpretation, depending on which theory you follow, and (c) legislators and the President should exercise their own independent responsibility to ensure that the legislation is constitutional, a responsibility that they can plausibly satisfy by following either judicial precedents or some normative theory of interpretation. That?s my sense of things, at least.

Full post as published by The Volokh Conspiracy on December 23, 2009 (boomark / email).