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An Answer to Radley Balko's “Honest Question” About What Constitutional Limits “the Left” Accepts

Over at The Agitator, Radley Balko says liberal outrage over Judge Henry Hudson's ruling that the individual mandate is un-Constitutional causes him to wonder if we accept any Constitutional restraints on what the federal government can do.

Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do?

[…]

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place?

The short answer is, “yes, of course.” The question's a straw-man -- as evidence that “the left” flatly rejects all limits on the federal government, Balko offers up a statement by Rep. Pete Stark, a liberal from California, which was taken at least somewhat out of context during a town haul meeting with constituents and turned into a minor brouhaha by Andrew Breitbart's crew a few months back.

More importantly, premising the question on us “setting aside the Bill of Rights” and amendments 11-27 just because they were ratified after the fact is disingenuous. As soon as an amendment is ratified, it becomes part of the United States Constitution, and those amendments happen to codify most of the constraints on the federal government that liberals hold to be the most important. (Balko's a good civil libertarian who thinks they're pretty important too.)

Essentially, he's saying, 'aside from preventing the government from limiting your right to speak, worship, assemble, petition government for redress, searching or seizing your stuff without due process, forcing you to incriminate yourself, enacting policies that discriminate on the basis of race and gender and guaranteeing a dozen other cherished freedoms, are there any constraints at allthat you lefties find legit?'

That aside, the longer answer is that the Framers obviously didn't create a detailed, step-by-step handbook for governing the U.S., and they didn't try to anticipate every conflict that might come up in this new federal system they were cooking up. But they knew that conflicts would in fact arise, and they created a court to adjudicate those conflicts. It's an enumerated power!

Now, the issue before us is what economic activities (or non-activities) the Commerce Clause empowers the feds to regulate, and the Supreme Court has used an expansive – and, yes, expanding – interpretation of that clause for close to 75 years.

Balko, like his fellow libertarians, and, less consistently, conservatives, doesn't like that interpretation, which is his right. But it is nevertheless what's known as a “super-precedent” – jurisprudence that's been tested and affirmed in a not one or two, but a series of cases decided by the courts over the years.

Until maybe 20 or 30 years ago, the idea that judges should, accept in very rare cases, defer to precedent was a key tenet of judicial conservatism. That's changed somewhat with the right's focus on “originalism” – the idea that justices should try to glean the original intent of the Framers and put a little less emphasis on upholding precedent. (That shift is why, ironically, when one defines “judicial activism” as a willingness to overturn past rulings, conservative justices have been shown to be far more activist than liberals in recent times.)

So, a shorter answer, speaking as just one lefty, is that I accept any constraints on the government that the Supreme Court, guided, as it should be, not only by the text of the Constitution but also by past precedent-- and checked by the states and the executive and legislative branches via the amendment process -- holds to be legitimate.

I'm not sure how anyone could come to a different view. And when I disagree with the Supreme Court on a matter of settled law, I advocate amending the Constitution to address it. Conservatives, it seems, prefer to cry “un-Constitutional!” when they don't like the courts' decisions, despite the simple fact that the Constitution itself empowers the court – and only the court – to interpret its text and rule on any disputes that arise from it.

PS: Interested in some actual arguments here? Here's conservative legal scholar Eugene Volokh on Hudson's bizarre reading of the Necessary and Proper Clause, and Mark Tushnet on the economic activity versus inactivity distinction.*

*Edited after publication.

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