We Are Living Through Constitutional History

August 4th, 2010

We often fail to realize that we are living through history. I wonder what it must have felt like for a Constitutional Law Professor to have lived during the New Deal. With each passing year, the struggle between the President and the Supreme Court grew larger and larger until the famed switch in time in 1936 (I won’t get into the scholarly debate over whether that actually happened. Let’s just assume it happened). To have witnessed that, you were living through constitutional history.

Today, I implore everyone to pause and reflect. We are living through constitutional history.

There have been a several major constitutional changes in my lifetime (though most of them were before I went to law school and knew anything). But these cases had a limited practical impact on the vast majority of Americans. The federalism revolution of the Rehnquist Court, with Morrison and Lopez set some limitations on the power of congress–but on relatively insignificant items. Guns in school zones and violence against women are serious issues, but in the grand scheme of things, the Court’s opinions were not that far-reaching. Even the Court’s reversal in Raich wasn’t that big of a deal. How many people grow medicinal marijuana? Grutter and Gratz were important for college admissions, but those opinions really didn’t change too much for most Americans. Kelo created a huge backlash, but it was really a logical extension of Berman and Midkiff. Property rights, if anything, are more firm after Kelo. Heller and McDonald were very symbolic, but most Americans were already permitted to own guns. Those who were not allowed to own now have an important, but significantly curtailed right. Iqbal changed pleading standards, but how many people ever actually file suit in district court? Citizens United revolutionized campaign finance law, but how many people are associated with groups that contribute to advocacy ads before an election? As important as these landmark cases were, they were limited in that they only affected small segments of the population.

The Individual Mandate is different–it affects everyone. And that was precisely the point of the individual mandate. The significance of the challenge to the constitutionality of the individual mandate is commensurate with the impact of the individual mandate. Whatever case/cases ultimately makes it up to the Supreme Court will affect every single American.

Now, we are living through the history that makes this challenge possible. It is worthwhile to pause, reflect on how we got here, and look ahead to where (I think, at least) we are going.

This process really began in December 2009, months before PPACA passed. Randy Barnett, Todd Gaziano, and Nathaniel Stewart wrote a report for the Heritage Foundation arguing that the individual mandate was unconstitutional. Before this, no serious scholar had put forth this opinion. That day Randy, Eugene Volokh, and Senator Orrin Hatch spoke at Heritage about the unconstitutionality of the mandate. In my mind, this was really the kickoff of the movement we are not witnessing.

Randy contributed to pieces in the Wall Street Journal (see here and here) as well as blog posts on Volokh (see here, here, here, here, here, here,  here, and here) advancing the dialogue that the mandate was unprecedented, and that no precedent supports this exercise of power. From this, some snarky bloggers crafted a Randy Barnett “Unprecedented” Drinking Game. With each post, it seemed that the public sentiments were growing. Randy’s biggest foil was Jack Balkin, who penned a number of insightful posts on Balkinzation to the contrary (see here, here, here, here, here, here, and here). Jack and Randy even took their show on the road, debating at at number of venues (see my liveblog of their talk at the ACS National Convention). With each passing day though, as the opposition to Barnett’s argument grew, I sensed a palpable change in the legal climate.

Recently, a Judge who allowed Virginia’s challenge to PPACA proceed. Last night Seventy-two percent of Missouri voters passed a referendum that seems to nullify PPACA. I have no clue how this is constitutional under the supremacy clause, but if nothing else, it gives standing to challenge PPACA notwithstanding the Tax Anti-Injunction Act. More referendums are up for vote in the near future in many states. Polls show that a majority of Americans want to repeal PPACA.

These cases will wind through the lower courts over the next year or two. Back in December I doubted SCOTUS would ever grant cert on this case. Based on the state of things now, I think it is now very possible the Court will take this up. Generally, Courts will uphold Federal Statutes. I won’t dispute that. In the words of Bob Dylan though, the times they are a-chagin’.

Only time will tell. I have no doubt though, that we are in fact living through constitutional history. Hang on, and enjoy the ride.