Tuesday, February 1, 2011

Only One Right Way to Read the Constitution?

A friend showed me a good article by Jill Lepore in the New Yorker Magazine.  It is a good opening to consider how the US Constitution has been interpreted differently by so many different people with so many different philosophies. She even broaches the issue of dogmatic rigidity in some of those interpretations.  Her conclusion is:
"The Constitution is ink on parchment. It is forty-four hundred words. And it is, too, the accreted set of meanings that have been made of those words, the amendments, the failed amendments, the struggles, the debates—the course of events—over more than two centuries. It is not easy, but it is everyone’s. It is the rule of law, the opinions of the Court, the stripes on [former slave] William Grimes’s back, a shrine in the National Archives, a sign carried on the Washington Mall, and the noise all of us make when we disagree. If the Constitution is a fiddle, it is also all the music that has ever been played on it. Some of that music is beautiful; much of it is humdrum; some of it sounds like hell."
This brings me to consider the Constitutionality of the PPACA (Health Care Reform some of you know as "Obamacare").  I have read the two federal district court decisions finding it unconstitutional written by activist conservative judges (it goes both ways, people.  The most recent decision actually cites the Boston Tea Party for historical argument - if that isn't pandering political activism, I don't know what is).  I haven't yet read the decisions that find it constitutional.  It is anyone's guess how this will eventually work out in the courts but you can make some predictions.  These decisions will all be appealed to the Circuit Courts and if there is any division in the Circuits, the Supreme Court will then take it up. If the Circuits are all consistent in upholding or striking it down, the Supremes may stay out of it and decide not to review - but its more likely it will get to them eventually.  There is a lot of speculation out there as to how the Justices will decide with their various judicial philosophies and political persuasions.  And it's a pretty safe bet Thomas and maybe Scalia and Alito will strike it down as violative of the Commerce Clause - but even those last two give deference to Congressional enactments and Congress's own determination of what is Constitutional (and they lay it all out in the Act! Sec. 1501).  Ginsburg, Breyer, and probably Kagan and Sotomayor will likely uphold it.  Chief Justice Roberts is on the conservative side but he has an institutional interest in not interfering with the Congress anymore than necessary.  Justice Kennedy is the clear swing vote and looking at some analyses of his decisions on the Commerce Clause, he is likely to uphold Constitutionality.

As an interesting aside, another attorney friend suggested to me today that if the Congress had only passed a "single-payer"  or "public option" plan like the liberals wanted, it wouldn't have any problem with Constitutionality in the Supreme Court because they have been very deferential to Congress in its power to tax for the general welfare.

But in my view of the Constitution, I don't even think the Supreme Court is the final word, Justice John Marshall notwithstanding.  I do not see the Constitution as a set of rules as "do's" and "don'ts."  Sure, there's some of that particularly in the Bill of Rights and other Civil Rights recognized, but even they are subject to significant interpretation.  I see the Constitution as a process document giving us institutions with checks and balances and means for the people to make decisions about our government and important things including Constitutional interpretation.  Often this is accomplished through the sacred principle of compromise, the very principle that gave us our inspired Constitution out of the varied opinions of those wonderful founders who were certainly not all of one mind.  (That right there ought to dispense with the philosophy of "original intent".)  I mean, regardless of the Supreme Court, it is ultimately the people who make the decisions through the legislative process, election of Congress and the President who appoints Justices (usually belonging to the same party as the appointing President - but with checks in the Senate approval) and certainly through the marketplace of ideas.  And I will graciously concede that this is not how everybody sees the Constitution or that it is the only "right" interpretation.  But it is that very contentious mix of ideas that I find so wonderful to put the people ultimately in charge.  And I might even claim that I am the only one who sees it this way, except that there is a guy who used to teach Con-Law (Constitutional Law) at the University of Chicago.  He has similar views that the Constitution is about process.  (See The Audacity of Hope especially Chap. 3.)

So, how do I personally see the Constitutionality of the PPACA?  Even the two judges opposed acknowledged that the health industry is certainly interstate commerce and that purchase of insurance could be.  But they objected to the compulsion to purchase insurance arguing that not doing something cannot be considered economic activity.  But that lack of decision or inactivity still has its impact on the overall health care commerce.  I would sympathize with the argument that government is overreaching to have us engage in something we may choose not to, but I would like to see the person who has never taken advantage of that health care market - no doctor at birth (sure, that happens) but also no vaccinations, no prescription or over-the-counter drug purchases, and no visit ever to a doctor.  I don't see it just as the prospective expectation that they may end up in an emergency room and be a burden on the finances of the hospital and everyone else's insurance.  It's that lack of never participating in the commerce of health care that I find unpersuasive.  And as a condition of that participation, I see no problem with the requirement to purchase health insurance.

(Oh, there is also an exception in PPACA for religious beliefs which are the only people I can imagine who would never take advantage of the health care market.  See  PPACA, Sec.1311(d)(4)(H).   Oh - Also Indians are in there as exempt probably because of the Indian Health Service which means they wouldn't need insurance.)

Bottom line- engage in the process.  Participate in the conversation.  You don't have to agree with me, but I appreciate you listening and I will listen to you.  We'll work it out together. E Pluribus Unum. In God We Trust.


  1. Another excellent post.

    Of course, one argument the conservative side uses about the Health Care law is that none of the Founding Fathers would have ever supported forcing people to but something. Of course there were the Militia Acts of 1792 ...

  2. I neglected to mention the "necessary and proper" clause that may help too. And, I know that some (like Judge Vinson) will argue that if this is Constitutional under the Commerce Clause then there is nothing that would not be. I sort of concede that argument - except that the process the Constitution sets up to accomplish anything like that has so many checks and balances it would be very difficult to do - case in point - we don't have the public option because the people (read Congress or specifically the Senate) wouldn't allow it, yet.

  3. I should note too that Jill Lepore mis-characterizes Cleon Skousen at least a little. From what I understand, he was never "officially" a Bircher but he was connected as a supporter (and lecturer I believe). And I'm not quite sure what "rogue Mormon" means. If it's the "rogue" like Palin is to the Republican Party, then maybe it fits.


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