Is the Court Engaging in Activism if It Strikes Down ObamaCare?

The President is issuing warnings that any adverse judicial action on the Patient Protection and Affordable Healthcare Act will amount to activism. Here is a snippet of his comments as appearing in USA Today:

“I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism, or a lack of judicial restraint,” Obama said during a joint news conference with the leaders of Canada and Mexico.

Obama defined activism by saying “an unelected group of people would somehow overturn a duly constituted passed law—well, here’s a good example. And I’m pretty confident that this—this court will recognize that and not take that step.”

The Supreme Court—which heard three days of arguments on the law last week—is expected to hand down a ruling in June.

Obama said he’s “confident” that the high court “will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

The President is not the only one claiming that a decision against the individual mandate will be judicial activism. J. Harvie Wilkinson of the Fourth Circuit Court of Appeals in his new book Cosmic Constitutional Theory says: “The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy judicial lift.” Wilkinson was nominated by Ronald Reagan and is one of the more conservative judges on the Fourth Circuit.

Do Obama and Wilkinson have a point here? Well, in answering this question, we must remember that the Court is a co-equal branch of government and is duty bound to interpret the Constitution when performing its functions. But, as the President pointed out, it is also an unelected branch. Life appointment and insulation from the electorate requires that the Court tread lightly when reviewing enactments passed by majorities in both houses of Congress and signed by the executive into law.

In his famed 1893 law review article, Harvard Law Professor James B. Thayer argued that the people’s representatives should be allowed “a range of choice; and that whatever choice is rational is constitutional.” The judicial power, according to Thayer, does not extend to policy considerations. In the realm of competing policies, legislative choice should be “unfettered.” A duly enacted law, Thayer continued, ought not be questioned by the courts unless “it is so obviously repugnant to the constitution that when pointed out by the judges, all men of sense and reflection in the community may perceive the repugnancy.”

I think there is much to be said for judicial restraint and Thayer’s model. Undoubtedly, if there is a policy decision, a legislature should be given much discretion in fashioning a law. The law might be silly or unwise, but that does not translate into unconstitutionality. Judges must recognize the limits of their knowledge and permit elected officials to experiment with various measures in addressing society’s ills. Otherwise, democracy atrophies and the people are denied their right to self-government.

However, with our society over 200 years removed from the Founding generation, all branches of government must be careful when interpreting the Constitution and being true to the public meaning of the words and phrases used by the Framers. Thayer’s generation (he was born in 1831) was much closer to the Founders and thus were less likely to suffer from language confusion than we are. Because of the evolution of language between 1787 and 2012, a threshold question often will have to be “If the state ratifying conventions were told that X provision of the Constitution would permit Congress to do Y, would the Constitution have been approved?” In other words, is an interpretation so beyond the pale that it would have been viewed and constitutional heresy if offered by the Friends in the Constitution in 1787?

In this case, how would the state ratifying conventions have reacted if told that the commerce clause permitted Congress to force Americans to purchase an item such as insurance? Would they have consented to give Congress such a power. Considering that research indicates that commerce was primarily understood as exchange and there was a general distrust of power being accumulated at the center, the answer is most probably No. Randy Barnett has summed up his excellent research as follows:

The most persuasive evidence of original meaning–statements made during the drafting and ratification of the Constitution as well as dictionary definitions and The Federalist Papers—strongly supports Justice Thomas’s and the Progressive Era Supreme Court’s narrow interpretation of Congress’s power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” “Commerce” means the trade or exchange of goods (including the means of transporting them); “among the several States” means between persons of one state and another; and the term “To regulate” means “to make regular”—that is, to specify how an activity may be transacted—when applied to domestic commerce, but also includes the power to make “prohibitory regulations” when applied to foreign trade. In sum, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.

The Independent Institute has also published this article summarizing the original meaning of the Commerce Clause.

We also should recall that the powers of Congress were supposed to be few and defined, while the reserved powers of the states were numerous or indefinite. Also, state legislatures are more representative of the people—smaller districts yield smaller groups choosing a representatives. Representatives chosen from smaller districts are likely to have a better sense of the people and thus a states representative’s decision should be accorded more weight than a federal representative’s whose district is 800,000 souls. Hence, it is proper for the judiciary to scrutinize more closely a congressional enactment than a state law.

While Obama’s and Wilkinson’s warnings counsel the Supreme Court to be very careful before it strikes a law, a nullifying of the individual mandate is not judicial activism. Had James Madison or Alexander Hamilton advocated a reading of the commerce clause to permit the individual mandate, we would still be operating under the Articles of Confederation. While in modern language some of us might understand “interstate commerce” and synonymous with “national economy” the Framers and ratifiers had no such understanding. The people have never given Congress the power to regulate all economic matters that might affect the national market for an item. If we want Congress to have such a power, let’s amend the Constitution to give it to them. Otherwise, the words as they are currently on the paper require that the Court must strike down the individual mandate. Thayer, in my opinion, would applaud such an action.

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