Randy Barnett gave a very significant address on Obamacare at Cato’s Constitution Day. C-SPAN posted the video here. Randy makes an important point about the relationship between the challenge to Obamacare, popular constitutionalism, the Tea Party, and social movements. Towards the end of his address, he commented:

“We also have the realist fact that 5 Justices embraced the entirety of our commerce clause and necessary and proper clause arguments. Critics like Charles Fried can dismiss this as emanating from the leaderless Tea Party. But it is now embraced by what is called the rule of 5.  Even if the Tea Party played a role, we have long been told that this is how the living constitution–by which it is meant constitutional doctrine–evolves in response to social movements. So unless it is a living constitutionalism, but not for thee, if the outcome of this case was indeed impelled by popular constitutionalism, that would make it more, not less legitimate on living constitutionalist grounds.” (Around 18:20 — This transcript is my own, based on my best efforts to transcribe the video. I’m sure there are some errors).

Randy’s remarks acknowledge that the fact that 5 Justices accepted his version of the commerce clause is evidence that popular constitutionalism did in fact work. Now Randy may not personally accept that theory of constitutional law, but for those who do accept it–those who lost the commerce clause argument–the evidence is quite clear.

This comment also echoes remarks Randy made in June of 2011 at the ACS National convention–a year prior to the Court’s unexpected opinion.

 But I do want to get back to the politics of this for a minute. I understand you had a very lively panel on original meaning [yesterday]  . . . But i take it that the valence in this room is kind of not all that sympathetic with original meaning. Original meaning says the meaning of the Constitution must remain the same until it is properly changed. The opposite of originalism, or different position, is that the meaning of the constitution evolves over time to respond to changing conditions or to respond to political initiatives, or what my friend Jack Balkin calls social movements. That is what the alternative to original meaning is, the evolution of constitutional meaning according to social movements. Well, look if you guys believe in that, you may be looking at a political movement in the face.

Political movements sometimes go in your directions, sometimes political movements don’t. If political movements don’t go in your direction, it is difficult to rush in with  copy of the Constitution . . .  and say no, no, no, it is the Constitution that stops you from doing this. Not if at the same time you think that political movements cause the Constitution to change through political appointments, and confirmed by politically appointed Senate. That is just the way business is done.

That’s the way business is done. Not only should you not be surprised. You should also not complain. Except, if that day were to ever come, you were just on the losing end of a democratic process, then you have judicial restraint to fall back on. You have judicial restraint to fall back on to protect the political process you lost.

I want to suggest that maybe, just maybe the original constitution might have something to offer you if you are ever on the losing end of a political movement.

Since the ACA dust settled, I have been taking stock of exactly what happened, how it happened, and when it happened, in order to learn more about how conservatives and libertarians tapped into what could be called living constitutionalism or popular constitutionalism.

For years, those on the left prided themselves on the notion that the will of the people, or social movements, or popular constitutionalism, can and should affect how the Supreme Court construes the Constitution. For years, those on the right rejected this form of “activism” (excuse the pejorative), and instead turned to judicial restraint as response.

However, the ACA brought forth an interesting reversal of roles. Taking a play right out of the popular constitutionalist handbook, the challengers keenly created a two-tiered approach: the challenge inside the court, and the challenge outside the court. The challenge in court revolved around precedent, or really unprecedent–never before has Congress gone so far in mandating activity.

But the challenge outside the court was just as, if not more, important.  The Tea Party, and leaders of the Republican Party, gravitated around this constitutional challenge, and led a full-front assault on Obamacare. These efforts were quite successful in affecting the public opinion of the law, and creating a political climate that would enable the justices to strike down the law without fearing a backlash. This front outside the courts helped create the legal and political landscape that would enable the Supreme Court to strike down the law. Indeed, one of the most important roles played outside the court was ginning up opposition to the ACA (in this article-in-progress, I have gone through every single poll about the ACA over the course of 2+ years).

As Adrian Vermeuele noted:

The precedents that mattered in the health care cases were not legal precedents in the narrow sense, the doctrinal rules set out in opinions and dissected at length in constitutional law treatises. What mattered were normatively colored expectations, held by public opinion and (derivatively) by public officials, about how political actors, such as the Justices, do and should behave. These expectations are shaped in part by past episodes—decisive showdowns between branches of government that are refereed by public opinion.

Randy, along with other scholars helped to nourish and grow the social movement that gave legs to the  constitutional challenge to Obamacare.  It is fascinating to go through posts on the Volokh Conspiracy, the leading blog that led the charge against the ACA’s constitutionality. I found a number of posts that discussed the law’s popularity (here, here, here, here, here, here, here, here, here, here, here–I think that may be my record for heres), and in this post I reflect on the evolution of the arguments as the challenged progressed.

At the outset, the Conspirators recognized that the ACA’s popularity would make any challenged difficult. Way back in September 2009, David Bernstein reflected on the connection between the political process and the outcome in the case:

My small contribution is that the Supreme Court would be much more likely to invalidate elements of Obamacare on which there is no firm, direct precedent if the Republicans sweep the 2010 midterm elections than if they don’t. In my view, it’s no coincidence that Lopez, the first case to invalidate the a federal law on commerce grounds since the 1930s, came after the Republican sweep in 1994, and no coincidence that Raich backtracked on federalism at a time when neither the incumbent Republicans nor certainly the Democrats were spending any political capital on either limited government in general or federalism specifically, and indeed, when these issues seemed passe. The Supreme Court, institutionally, does not like to be exposed on controversial issues without any support from the political branches.

Ilya Somin responded to this point:

By contrast, health care is currently both a major concern of voters and a top priority for political elites in the Democratic Party. If the Democrats succeed in passing Obama care and then retain their congressional majorities, the Court will be on notice that invalidating any major part of the health care bill invites a massive confrontation with Congress and the president. The most ideologically committed justices (e.g. – Thomas) might be willing to take the risk. But the moderates won’t. They know that Congress and the president could react with harsh measures such as refusing to obey the decision, implementing an updated version of FDR’s court-packing plan (the threat of which helped persuade the Court to back down in 1937), or passing laws limiting the Court’s jurisdiction. Such extreme measures are rarely used; but they could be employed if the Court crosses Congress, the president, and the voters on a major issue they care about intensely.

In March of 2010, shortly after the law was enacted, Ilya Somin commented on what he called a “two-track” strategy for opposing Obamacare.

But while neither legal nor political action is likely succeed by itself, a two-track strategy combining the two stands a better chance. Unlike most high-profile policy initiatives enacted with strong presidential and congressional support, Obamacare is generally unpopular. Polls show substantial opposition to it, with opponents outnumbering supporters by 10 to 20 points (see here and here). If majority opinion continues to oppose the bill and Republicans make big gains in November as a result, the courts might be less hesitant to strike it down. They will not face any political retribution if they strike down a bill that most of the public and a new congressional majority actually opposes. Indeed, their public standing might even increase if they did so.

Likewise in a March 2010 Q&A feature on the Washington Post’s web site, Barnett reflected on the relationship between the unpopularity and the outcome of the challenge:

On the level of pure “realism” which is your question, if this legislation is popular, they are unlikely to strike it down. But if it is deeply unpopular, and one or both houses of Congress flip parties as a result, then the legislation is much more vulnerable. Assuming the Supreme Court follows the election returns, as “realists” claim.

In a November 2011 post, David Bernstein astutely observed that one of the key (eight) factors in the Court’s decision will be the popularity of the law:

“So now that the opponents of the individual mandate have manged to make arguments that pass the laugh test, the Supreme Court’s ultimate decision will involve such factors as: (1) How popular will the individual mandate, and health care reform more generally, be when the Court takes up the issue?”

However, as the polling data developed, and revealed that people wanted the law to die, the supporters’s tone shifted from saying “if the law is popular, the law will be upheld” to “because the law is unpopular, the Court will not face a backlash if the law is struck down.” This pivot was pivotal in counteracting preemptive attacks from the left on the Court’s legitimacy, when supporters of the law began to realize that the ACA may not survive.

In some senses, the shifting of the polling data resulted in a shifting or burdens of persuasion, so to speak. Before the law’s unpopularity was established, the challengers of the law had to advance a legal theory that, in David Bernstein’s words, passed the “laugh test.” Through 2010 and 2011, the challengers did this, though acknowledging all the while that if the law remained popular, it was likely not to be struck down. The increased power of the social movement against the law, emboldened by Tea Party protests and Republicans campaigning, gave support for several key district court victories. The process by which this law became, and remained so unpopular, was no accident.

After these initial victories,and increasing unpopularity of the law, the burden of persuasion shifted to the supporters of the law. The supporters argued that the Court should not look to public opinion, and alternatively, if they did look to public opinion, there would be a massive blowback to the Court’s legitimacy.

In April 2012, Dahlia Lithwick and Barry Friedman (Mr. “Will of the People”) illustrated a modest example of this preemptive attack, and wrote that the Supreme Court should ignore public opinion. ” The justices should keep their day job, and leave the poll numbers to the pollsters.”

Randy Barnett replied with a contrary take, noting that the exact opposite is true–if the Court upholds the law, even though the majority of the people want the law to be struck down, the Court would be undermine its legitimacy:

In the past couple days, at least two serious academics who I like and respect have told me that the Supreme Court’s legitimacy with the public will be severely undercut if it invalidates the mandate, so the Court either should or will (or both) uphold it.  In response tothis contention I then present polling date to show that, for example, that the Court’s approval rating jumped 12 points after the oral argument.  So not only does this “realist” assessment and/or recommendation run afoul of the polling data, these observers are either urging the Court to rule politically or predicting that it will (or both). Yet if the Court were perceived to have acted in this manner, then this would indeed undermine its legitimacy with the public.  

As it came closer to decision day in June 2012, the challengers shifted their approach, and observed that these polls could show that the Justices would be doing something unpopular by upholding the law.  As Jon Adler put it  in January 2012, “Another interesting finding from the survey is that a majority of Americans also believe that the Supreme Court will strike down the mandate.  In other words, according to this poll, a majority of Americans will be surprised and disappointed if the individual mandate is upheld.”

In February 2012, Randy Barnett reflecting on polling numbers showing that Obamacare was quite unpopular wrote:

I do not believe that the Supreme Court decides cases based on how well laws or its decisions may poll.  But these results do suggest that the Court is unlikely to face a strong backlash should it hold the individual mandate unconstitutional.  Such a decision by the Court would conform to the current expectations of the public — assuming, of course, that this polling is remotely accurate and underlying opinion remains the same in June as it is today.

Ilya Somin noted in March 2012:

“However, the overwhelming public support for striking down the mandate does suggest that if a majority of the Court wants to invalidate this law, they probably won’t be prevented from doing so by fear of a political backlash.”

Jon Adler closed a 4/11/12 post:

Polls are consistently finding that most Americans believe the Supreme Court should and will strike down the mandate.  If anything — and I stress if anything – this would suggest there’s more political risk to the Court from upholding the mandate than from striking it down.  In the end, however, the justices should not base their votes on public opinion polls, but on what they believe the Constitution requires.

Ilya put it slightly different in a June 7, 2012 post reflecting that 68% of respondents to a poll want the Court to strike down the mandate–if the law is unpopular, the Justices would not be deterred from striking it down out of concern of a potential backlash:

“To avoid misunderstanding, I emphasize that the justices should not strike down the law merely because a large majority of the public wants them to. Most voters have only a very limited understanding of constitutional law, and many unpopular laws are still constitutional. Sometimes it is the Court’s duty to strike down a law even if a large majority of the public wants the law to be upheld, as happened when the Supreme Court invalidated laws banning flag burning. The real relevance of the polling data on the mandate is merely that if a majority of the Court believe that the law is unconstitutional, they are probably not going to be deterred from striking it down by fear of a political backlash or damage to their legitimacy.”

Reacting to the same poll, Jon Adler wrote, “The flurry of commentary suggesting the Supreme Court would provoke a popular backlash were it to strike down the individual mandate does not appear to have affected the populace.” Or, as Ezra Klein said, reflecting on the same June 7 poll, “Bottom line: If you’re Anthony Kennedy and John Roberts, and you want to rule against the individual mandate but you’re worried about a public backlash, this poll calms your fears.”

A related point is the difference between asserting that the “Court should not base votes on public opinion polls” though the Court “should be cognizant of popular opinion when reflecting how an opinion will be received.” The distinction between these points is something I hope to address in the future.

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.Randy is part of a large group of conservative and libertarian lawyers, politicians, and activists who want to change the public’s mind about the powers of the federal government. They want the public and the courts to rethink the assumptions of the activist state that came with the New Deal. They want to restrain the growth of the federal government and push it back, because they believe that this is more faithful to the Constitution as they understand it.Randy and his allies are trying to change people’s minds through op-eds, speeches, protests, and litigation. They are trying to move things from “off the wall” to “on the wall.” And this is not the first time people have tried to do this. All social and political movements that seek to change the Constitution in practice do something like this, although the exact strategies and methods may differ. Attempting this is part of the process of constitutional change. It is an aspect of of living constitutionalism. (This is one of the greatest ironies of modern conservative orignalism– it is a perfect example of how living constitutionalism actually works in practice.).

If Randy and his allies are successful in changing public and professional opinion, then they will move these ideas from off the wall to on the wall. They will make arguments that were once considered frivolous serious arguments, and possibly even winning arguments. They may not succeed. But if they do succeed, they will have changed the practical meaning of the Constitution, and changed it a great deal. In this sense I can report my own view that Randy’s arguments, if accepted, would work a significant change in existing law. Far be it from me to call that change frivolous. It would be very profound indeed.

Randy’s response is also instructive:

Unlike the misleading and inaccurate “Constitution-in-Exile” trope promoted by Cass Sunstein and Jeff Rosen a few years ago–and heatedly debated here and elsewhere–Jack is right about this. I and others are trying to do exactly this. Jack has read my book, Restoring the Lost Constitution: The Presumption of Liberty and has interpreted it accurately. Keep in mind that, for Jack, “off-the-wall” is descriptive of the current acceptance of an argument not its soundness or its normative appeal. By calling these ideas “off-the-wall” he was not being disparaging, and I did not take it that way.

In his post, Jack is trying to marginalize the challenge to the individual mandate by connecting the argument about its constitutionality to my and others “off-the-wall” departures from conventional constitutional argument. But this connection is completely unwarranted.

I can tell you what an “off-the-wall”–but in my view constitutionally sound–challenge to ObamaCare would look like: it would contest whether Congress has the power to regulate insurance companies under the Commerce Clause, given that the original meaning of “commerce” did not extend to insurance contracts, which is why for 100 years the insurance business was regulated state by state. Then, in the 1940s, the Supreme Court, in a weirdly reasoned opinion, upheld the use of the commerce power to reach insurance companies. (This necessitated a Congressional statute authorizing states to continue regulating insurance as they always had, which is how state regulation has persisted.) Contending that the Court enforce the original meaning of the Commerce Clause and refuse Congress the power to regulate health insurance would be an accurate reading of the Constitution in my view, but it would also be “off-the-wall” at this point.

But here is the thing. No one is making this argument. Not me, not “the large group of conservative and libertarian lawyers, politicians, and activists who want to change the public’s mind about the powers of the federal government,” and certainly not the Attorneys General of 21 states. No, we are all looking at the law as it currently exists and observing that the Supreme Court has never upheld the use of the commerce power to mandate that everyone engage in economic activity. All it has ever done is regulate or prohibit those who choose to engage in economic activity. As such there is no existing authority for extending the Commerce Clause this far.

Though, Randy’s prediction didn’t pan out.

So I will make this prediction: If five justice vote to uphold the individual mandate, they won’t use the Tax power theory because (a) its implications are just too radical and (b) there is zero public support for such a constitutional proposition. To coin a phrase, it is “off-the-wall.”

I’m sure Scalia wanted to bounce the Chief off a wall!

Also, this quotation from the Heritage Report in December 2009–before the law was even enacted. Seems like a direct message to the Congress to consider popularity of the law:

Since there literally is no legal precedent for this decidedly unprecedented assertion of federal power, it is highly unlikely that the Supreme Court would break new constitutional ground to save an unpopular personal mandate. Members of Congress have a responsibility, pursuant to their oath, to determine the constitutionality of legislation independently of how the Supreme Court has ruled or may rule in the future. But Senators and Representatives also should know that, despite what they have been told, the health insurance mandate is highly vulnerable to challenge because it is, in truth, unconstitutional. And all other considerations aside, the highest obligation of each Member of Congress is fidelity to the Constitution.

And a message to the Court:

Although it is always difficult for the Supreme Court to thwart what is perceived to be the popular will, polling consistently shows that this legislation, if enacted, will fly in the face of popular opposition. If that remains true after enactment, the majority of the Justices who are inclined to preserve the enumerated powers scheme and adhere to the original meaning of the text will have little inclination or incentive to stretch the Constitution to reach so decidedly unpopular and far-reaching a power as this one.

Interesting that this disclaimer is added to the document:

Nothing written here is to be construed as necessarily reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress.