In my draft article, Five Lessons from the Health Care Cases, I queried what is the significance of the fact that in NFIB v. Sebelius, the cahllengers did not primarily advance an originalist argument, though the outcome of the case moved the Constitution closer to its original meaning. I had trouble reconciling the two concepts. Though, after attending the Federalist Society convention this weekend, and chatting at length with Randy Barnett, I’ll offer a very cosmic constitutional theory (my apologies to Judge Wilkinson).
A brief astronomy lesson. In our solar system, 9 planets orbit around the Sun. The gravitational pull of our nearest star star keeps the planet in orbit. But, gravity goes both ways (grossly oversimplifying). Our planet exerts a pull, however small, on our star. To the extent that the planet exerts a pull on the star, the star will wobble a bit towards the planet. This principle of physics has enabled astronomers to locate planets outside of our solar system (extrasolar planets). Astronomers are only able to detect extrasolar planets–which are too small to be visible even with advanced telescopes–by measuring shifts in the movement of stars. If a star “wobbles,” that is a sign that a planet’s gravitational forces is pulling on it.
In our jurisprudential solar system, think of a star as our Constitution. Various planets that orbit the star represent different constitutional theories (now I’m just having fun with Judge Wilkinson). The strength of the theory can be viewed as a function of the gravitational pull the planet places on the star. If a theory has some pull on the star, even if the theory is not that close to the star itself, it still has some influence.
Let me explain in the context of originalism.
As Randy Barnett noted, there are three views of federalism (and I would add, relatedly, federalism’s structural protection of individual liberty, see Bond).
First, there is the pre-1937 originalist view, where the Court, unbound by modern precedents, rules in accordance with the original public meaning of the Constitution. Second, there is the New Deal-era view of federalism, wherein Congress has a plenary police power to do whatever it deems necessary, and any law that fills within the New Deal’s ambit will be upheld. Third, there is the New Federalism of the Rehnquist Court. This third strand can be best characterized as “this far, but no farther.” In other words, the New Federalism did not repudiate the New Deal view of federalism, nor did it effect a return to the pre-1937 view of Federalism. Rather, it asserted that if the federal government seeks to assert a power that goes beyond what had already been upheld, it must justify that extension of an unprecedented assertion of power. Now, the Court would not adjudge the constitutionality of the new law purely based on originalism, but instead based on what Chief Justice Rehnquist referred to as “first principles” in Lopez. It is noteworthy that Justice Thomas’s originalist opinion in Lopez was not joined by Justice Scalia (same for Morrison).
This tripartite taxonomy helps to explain why originalism has, and has not been successful in recent cases.
Perhaps the best examples in the first category are Heller in McDonald. In these cases, the Court was largely writing on a blank slate. The Court was in no way bound by any sort of New Deal compromise, as the precedential slate is clear. Thus, the Court was free to receive, and did apply originalist arguments. In fact, both the majority and dissent in Heller and McDonald advanced originalist arguments.
For decades, until Lopez and Morrison and other Rehnquist era precedents, the Supreme Court was steadfastly locked in the second zone of the New Deal-era view of Federalism. In the words of Larry Solum, the gestalt had crystalized.
However, what helped to break federalism free from its Roosevelt-imposed chrysalis? I would suggest originalism. Originalist scholarship began to emerge in the 1970s and 1980s that showed that the Court had departed from the original understanding of the Constitution in the New Deal cases, particularly with respect to federalism and structural protections of individual liberty. These cases exerted a pull on the Court’s jurisprudence ever so subtle at first, but soon enough the law, like a star being attracted to a planet, began to wobble. Progressives observed this wobble, worried, and hoped that the Constitution would remain in the sole-pull of the New Deal. Cases like New York v. United States, United States v. Lopez, Printz v. United States, United States v. Morrison, Seminole Tribe v. Florida and others are collectively dubbed part of the “New Federalism.” None of these cases were argued in terms of restoring the original meaning of the Constitution. The advocates didn’t need to. It was sufficient for the Justices to know that errors were made, those errors would not be fixed (in Justice Scalia’s words, they were “water over the dam”), but that the court should go no further from the Constitution’s original meaning without a sufficient justification from the government.
Gonzales v. Raich typifies the third category. Indeed, in Raich, Randy Barnett–one of the most prominent originalists–did not advance an originalist argument. He did not ask to overturn Wickard (other than in a perfunctory sentence in the brief). Randy’s arguments accepted the legitimacy of Wickard, but asked the Court to go no further. But Randy didn’t need to advance an originalist argument in Raich, because the constitutional force of originalist scholarship documenting how the New Deal court got the commerce clause wrong was already exerting a pull on the Court. I think it is not enough to simply say that advancing an originalist argument would be a losing argument.
Raich, ultimately, did not turn out in Barnett’s favor as the Justices saw that it did not go further than Wickard, so no further justification was necessary. In other words, while Lopez and Morrison went too far, Raich was still in the New Deal Settlement’s inner-orbit.
That brings us to the all-important question. Does NFIB v. Sebelius fit into the second category, or the third category? This question is probably more important than whether there were in fact 5 votes for the commerce clause position (I think the answer is yes). Is this case simply acknowledging the New Deal status quo, or has this case effected a shift in our constitutional gestalt, in Larry Solum’s terms? Well, what was the holding? As Justice Alito noted during his Federalist Society banquet adress, there were five votes for the Commerce Clause and Necessary & Proper clause argument. In other words, the Joint Dissent did not shun Chief Justice Roberts, at least entirely. Or, as Paul Clement noted in his address to the Federalist Society, the challengers only got 14/15 votes.
Though I would caution you not to get to hung up in counting the votes, which very well may have changed. Let’s look instead at how the case was litigated, rather than how it was ultimately decided. Was this a case where the government was able to easily argue that the ACA was covered by the New Deal precedents like Wickard? No. Well they tried, but failed, as most judges, even those that ruled in favor of the government, acknowledged that this case was different, in at least one or more respects. Academics who stated that this was an open-and-shut case soon had to change their tune and refine their arguments when its failings were highlighted. Instead, the government, tried to justify why this law was constitutional, beyond simply citing Wickard and Raich. They did this by citing the importance of regulating the costs of the health care market, and stressing how Congress had the power to address this national problem. In other words, the government’s behavior acknowledged that this law was going beyond what Congress had done before, and the United States was attempting to justify this departure.
This is the modus operandi for governmental litigation under the New Federalism. This far, but no further, without a sufficient justification. As much as the United States would hate to admit it, this case was not an open-and-shut case of simply applying existing precedents. The SG’s utter inability to identify a limiting principle–followed by academic handwringing– is evidence of that fact.
For this reason, I would contend that the NFIB case fits squarely (roundly?) within the the third ring of federalism.
And as such, originalism was only needed to have an indirect effect here. It was clear that the ACA was not supported under the original understanding of the commerce clause. Randy and others conceded this at the outset, but argued not in terms of originalism, but rather why this case goes beyond the New Deal precedents, and how the government failed to meet its burden of justification. But, the years of originalist scholarship showing how the commerce clause was originally understood was needed to highlight the need to substantiate this further departure from 1787. In other words, the originalist scholarship placed a mild pull on the star, and created the sense that perhaps it should not be pulled in the other direction.
In short, the potency of originalism cannot be measured simply by assessing whether originalist arguments are advanced, and ultimately accepted in any given case. Originalism’s potency can be seen as a factor of what view of federalism and liberty the Court is laboring under. Originalism, even in the third orbit of federalism cases, lays the intellectual groundwork for understanding how a particular law deviates from what has come before. Sensing how that theory pulls and tugs on our constitutional lodestar provides enough of an indication that an act of Congress has gone too far, and there needs to be a justification.
So, in this sense, originalism’s gravitational pull tugs the Constitution towards original meaning, even if originalism is not advanced in a case that circles the orbit of New Federalism. Originalism is the hidden force that causes other things to shift, even if we don’t directly see why. This is why “this far and no further” works, even when originalist arguments need not be made. Thus, scholars need to continue developing originalism so that the force, the pull, the tug remains to keep our Constitution shining bright and strong.
I thank Randy Barnett for offering this weighty idea as a way to explain the importance of originalism in our modern legal landscape. (See also Dworkin’s related thoughts on “gravitational force.”). As an aside, in writing this post after watching Judge Wilkinson’s talk on “cosmic constitutional theories,” I can’t help but quip that literally, I have written about a “cosmic constitutional theory!” For my take on Judge Wilkinson’s book, see here. I also have a longer review coming out in Jotwell.