Legal Commentary

More on Unconstitutionality of Health Insurance Mandate

By Randy Barnett

I was on NPR this morning with a one sentence explanation of why the health insurance mandate is unconstitutional. Hear it here. OK, it was a long sentence, taken from a much longer interview. (Even that sentence did not make it into the printed version of the story at the link.)

I found it most interesting that Akhil Amar concedes this type of exercise of power is unprecedented, which undermines the quote from William Treanor that it is easily supported by precedent running back 70 years. Keep your story straight guys!

Also, the flip-flop by Senator Grassley highlighted at the beginning of this piece underscores how Congress does not normally consider the constitutionality of what it does, and therefore deserves little, if any deference, when it comes to assessing whether it has stayed within its powers. Our Heritage Foundation Legal Memorandum has contributed to a congealing of senatorial opinion about the constitutionality of a health insurance mandate, as well as reaction throughout the country.

A nice recapitulation of the view was provided last week by George Will in his Washington Post syndicated column. I was particularly taken with his concluding observations about the role of the judiciary in policing the powers of Congress:

Judicial review ? let us be candid: judicial supervision of democracy ? troubles people who believe, mistakenly, that the Constitution?s primary purpose is simply to provide the institutional architecture for democracy. Such people believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, ?judicial activism.?

More truly conservative conservatives take their bearings from the proposition that government?s primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual ? basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts? role in that protection.

That role includes disapproving congressional encroachments on liberty that are not exercises of enumerated powers. This obligatory engagement with the Constitution?s text and logic supersedes any obligation to be deferential toward the actions of government merely because they reflect popular sovereignty.

The latter kind of conservatives are more truly conservative than the former kind because they have stronger principles for resisting the conscription of individuals, at a cost of diminished liberty, into government?s collective projects. So a constitutional challenge to the mandate serves two purposes: It defies a pernicious idea and clarifies conservatism.

Libertarianism too!

UPDATE: My friend Kurt Lash writes:

Just a quick response to your posting today on the VC regarding the health care mandate and George Will?s comments about conservativism and popular sovereignty. George Will confuses legislative supremacy with popular sovereignty.

As Gordon Wood chronicled, popular sovereignty emerged in the late 1700s in opposition to majoritarian legislative supremacy (which would soon dominate english politics as parliamentary sovereignty). Popular sovereignty distinguishes the sovereign people from their agents in representative government. Written constitutions, not majoritarian laws, represent the declared will of the people, with courts bearing the responsibility of enforcing this will through judicial review. Active judicial enforcement of the Constitution against unduly broad assertions of governmental power is thus central to the idea of popular sovereignty.

The confusion comes when pundits treat the laws of government as if they were the laws of ?the people.? This can never be the case under a true system of popular sovereignty where the people entrench fundamental law in a written constitution in order to limit the powers of their government?the better to secure liberty.

Full post as published by The Volokh Conspiracy on January 18, 2010 (boomark / email).