Dan Coenen provides a counter-originalist argument in The Originalist Case for the ‘Individual Mandate’: Rounding out the Government’s Argument in the Health Care Case. Here is the abstract:

This raises the obvious question for me–was the case agains the individual mandate originalist? Here is a synopsis of the arguments Coenen sees as originalist from the various briefs and oral argument.

The Petitioners’ Brief

The Solicitor General’s argument is far richer than this brief summary suggests. Its thrust, however, was unmistakably non-originalist. Indeed, not a single reference to any founding-era materials apart from McCulloch made an appearance until page 48, at which point the government offered a one-paragraph refutation of the suggestion that “[t]here is no textual support in the Commerce Clause for respondents’ ‘inactivity’ limitation” as to what Congress can properly “regulate.” That discussion, in turn, focused on a recent lower-court allusion to Samuel Johnson’s 1773 dictionary, which defined the word “regulate” to include the power to “direct,” which in turn was defined as including the power to “order” and to “command.”14 Even this discussion, however, moved quickly to the “new era of federal regulation under the commerce power” marked by a “practical approach” pursuant to which the Court has eschewed categorical distinctions that would ipso facto remove from congressional control such things as “‘production,’ ‘manufacturing,’ [or] ‘mining’” (pp. 48-49).15 Just as surely as the modern Court had rejected those categorical exclusions, the Solicitor General argued, it should now reject the challengers’ efforts to mark off purchase mandates as inherently beyond the reach of federal action under the Commerce and Necessary and Proper Clauses.

In all of this, there was not one citation to the records of the Constitutional Convention, to The Federalist Papers, or to any other materials connected with the framing and ratification process. There was no effort to draw on either background assumptions of the framing generation or its perception of the underlying purposes of the relevant constitutional provisions. There was no discussion about the actions of early Congresses or about what the creators of the original Constitution did not say about the respondents’ now-proposed limits on the Necessary and Proper Clause. Indeed, with regard to the issue concerning Congress’s commerce-related authority to regulate, there was no citation to any case, apart from McCulloch, that was decided before 1922– including no citation to the Marshall Court’s seminal 1824 commerce-power ruling in Gibbons v. Ogden.16 In short, apart from brief allusions to McCulloch and Samuel Johnson’s dictionary, the petitioners’ brief included no discussion of originalist matters at all.17

The Respondent-States’ Brief

In striking contrast to the argument put forward by the United States, the brief of the state respondents gave extensive attention to originalist concerns.18 As stated in the final sentence of the first paragraph of the brief’s Introduction: “The extraordinary power that the federal government claims here is simply incompatible with our founding document.” (p. 1). Support for this argument came from James Madison’s observation in The Federalist that federal powers were meant to be “few and defined,” while state powers remained “numerous and indefinite” (p. 18; see also pp. 28-29).19 The state respondents also highlighted historical understandings that “federalism secures . . . liberties” (p. 31; see also pp. 18, 31-32),20 pitching hard the proposition that the power- validating approach defended by the Solicitor General was effectively “uncabined” – so much so that, unless the minimum coverage law were struck down, “Congress could simply force within its regulatory reach all those who would remain outside it” (p. 11). Especially to be feared would be follow-up laws that compelled the purchase of cars (pp. 12, 23, 27, 29-30), life insurance (p. 47), or favored “agricultural products” (p. 30). Indeed, according to the state respondents, the government’s theory would produce such a constitutional “revolution” (p. 1) that it would empower the federal government to “force everyone to visit the dentist twice a year” (p. 29) and even compel individual choices about “marriage, divorce, and childrearing” (p. 28). All of this demonstrated that the minimum coverage provision was “antithetical to the core values of our Nation” (p. 18).

The state respondents also found support for their challenge in the constitutional text. The ability to “regulate commerce,” the state respondents urged, on its face envisions a “power to regulate existing commercial intercourse,” not “to compel

individuals to enter commerce” (p. 11).21 This distinction, they added, “would have been . . . obvious . . . to the framing generation” (p. 11), in part because The Federalist indicated that the members of that generation viewed “[t]he commerce power . . . as relatively innocuous” (p. 16; see also p. 18).22 Indeed, if the commerce power had been understood to let Congress control even “how people spend their money” then “surely . . . specific amendments would have been proposed to cabin the exercise of such an extraordinary power” (p. 32). Seeking to turn the Court’s pro-regulatory post-New-Deal jurisprudence back on the federal government, the state respondents added that the danger of government tyranny by way of government mandate was magnified by “the breadth of the modern conception of commerce” (p. 11). According to the challengers, the federal government was never given the “the power to compel individuals to engage in commerce in order more effectively to regulate commerce” (p. 1). Such an “unbounded” and “unprecedented” authority (p. 10) “smacks of the police power, which the framers reserved to the states” (p. 11).

. . .

For these reasons, the minimum coverage law did not qualify as “proper” under the teaching of McCulloch because it clashed with “the … spirit of the constitution” (p. 45).25 In the words of The Federalist, it was “merely [a] usurpation, and . . . deserve[s] to be treated as such.”26

22 In support of this proposition, the state respondents cited THE FEDERALIST NO. 45, supra note 19, at 314 (James Madison), which indicated that the “new power” to regulate commerce was “an addition that few oppose, and from which no apprehensions are entertained” (p. 16). The state respondents also relied on McCulloch by arguing that the minimum coverage provision could not rightly be viewed as a mere “means by which other objects are accomplished,” but instead involved the independent exercise of “great substantive and independent power” (p. 34; quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 411(1819)).

The Private Respondents’ Brief

The private respondents devoted sixty-two pages to arguing that the minimum coverage provision exceeded Congress’s powers under the Commerce Clause and the Necessary and Proper Clause. This discussion was wide-ranging, but there can be no doubt that it was crafted with care to align with originalist themes.  . . .

This slippery-slope reasoning might be seen as embodying something other than an originalist argument. The private respondents, however, took care to wrap all of their claims in originalist trappings. The very first words of the argument section of their brief referred to “The Founders,” who, the private respondents emphasized, “‘denied the National Government’ a ‘plenary police power’ . . . ” (p. 11). In an effort to highlight the legal difference between purchasing and not purchasing, they reached back to BLACKSTONE’S COMMENTARIES, which were cited in support of the “traditional distinction” between misfeasance and nonfeasance in Anglo-American law (p. 13). The private respondents referred repeatedly not only to McCulloch, but also to Gibbons, as well as to judicial opinions from 1795 and 1798 that were said to decry “mandates that ‘take[] property from A. and give[] it to B’” (p. 13).30 Time and again, the private respondents emphasized the centrality of “individual liberty” to the framers (p. 13), which gained protection from our founding charter’s “‘diffusion of sovereign power’” (p. 12). In short, the private respondents focused attention on “the framers” (pp. 36, 58), “the Founders” (pp. 20, 25), “the Founding era” (p. 61), “the framers’ generation” (p. 13), the “Founding-era public” (p.18), and “Founding-era legal usage” (p. 58).

The Reply Brief    

Perhaps because the respondents had so strongly emphasized originalist themes, the federal government’s Reply Brief gave some attention to the Court’s early work by pausing to cite McCulloch seven separate times (p. 7–9). The Reply Brief, however, went no further in offering originalism-related reasoning. Instead, the Solicitor General cited the Legal Tender Cases34 to attack respondents’ effort to use the word “proper” in a way that would create “a roving judicial commission to nullify economic legislation” (p. 9-10), and otherwise focused on post-New-Deal cases. The government also again faulted the respondents for advocating the “grave step of overturning the judgments of the democratically accountable Branches of government about what means would best address the Nation’s health-care crisis” (p. 2).

Oral Argument

 Most notably, the opening argument put forward for the federal government made no reference to originalist matters (2-3). To be sure, the Solicitor General had limited control over the direction of his argument because he quickly encountered a torrent of questions from the Justices, many of which raised slippery slope problems concerning such matters as broccoli (13, 17, 18), cars (19), health club memberships (41), and burial insurance (7, 15). Even so, some opportunities to consider framing-era evidence presented themselves. Justice Kennedy, for example, focused attention on what he saw as a departure from “tradition” as reflected by “the law of torts,” as well as the “unique way” in which the minimum coverage provision seemed to be “changing the relation of the individual to the government” (pp. 11-12). In response, the Solicitor General returned to the theme that the provision is best seen as a “regulation of people’s participation in the health care market,” given modern-day conditions under which “83 percent visit a physician every year” (p. 12).

In contrast, the arguments offered by both the state and private respondents were laced with allusions to early materials and those who crafted the Constitution. References were made to McCulloch (pp. 61, 63, 64), Gibbons (pp. 77, 79), The Federalist (pp. 73, 80), the “great Chief Justice” (p. 64), Hamilton (p. 60), Madison (pp. 60, 73), “the framing generation,” (p. 60) “the founding” (p. 100) and “the framers.” (pp. 60, 64, 73, 79, 89, 107, 108). In addition, counsel for both sets of respondents took care to direct the Justices’ attention to the “text of the Constitution” (81, 107), again suggesting that recognition of a congressional “power to compel people to engage in commerce” would be at odds with the wording of the Commerce Clause (p. 71; see also pp. 54, 73, 107-08). The respondents’ arguments also advanced the idea that the minimum coverage provision was so “unprecedented” that it fell outside “220 years of this Court’s jurisprudence” (54; see also 69, 79). In short, “the framers consciously gave Congress the ability to regulate commerce,” and in so doing they “denied [Congress] the power to compel commerce” (p. 107-08). Moreover, all of this comported with an underlying design to protect “individual freedom,” while ensuring that the federal government would not possess “plenary power” (pp. 107-08).

In his rebuttal, the Solicitor General did turn attention to one important originalist consideration. “I think,” he said, “this is actually a paradigm example of the kind of situation that Chief Justice Marshall envisioned in McCulloch itself, that the provisions of the Constitution needed to be interpreted in a manner that would allow them to be effective in addressing the great crises of human affairs that the framers could not even envision” (p. 110). Full discussion of the commerce power issue on rebuttal, however, lasted only some two minutes, and the focus again was on the functional notion that: “Everyone subject to this regulation is in or will be in the health care market. They are just being regulated in advance.” (p. 109).

Here is how he sums up the challengers briefs:

The initial impression created by the challengers’ briefs and arguments, when laid beside those of the federal government, is that an adherence to originalist principles supports invalidation of the minimum coverage provision. This impression arises from the striking contrast between the lines of argument put forward by the parties, and in particular the soft- pedaling of originalist reasoning by the federal government. The message, at least at a subconscious level, is that originalist principles do not provide meaningful support for the government’s position in the case.

I don’t know if I find this argument persuasive, at all. Scattered citations to The Federalist and Blackstone, and blankly invoking terms like “Framers,” “Founders,” etc. does not strike me as a compelling originalist argument. Perhaps more convincingly, citations to 18th century Supreme Court cases like M’Cullach, Gibbons, and others cannot be originalist. Coenen does not define what he means by originalist.

I saw one citation to a Barnett article’s article on the Necessary and Proper Clause, one citation to Balkin’s article on Commerce, no citations to Solum, no citations to Rappaport, one citation to Calabresi, etc. There is no exposition of what Coenen means by originalism beyond citations to The Federalist or Blackstone.

If he defines Originalism as citing anything before the New Deal is originalist, then I guess he is right. But frankly, with all the scholarship about what origianalism is, that does not seem to cut it. I think looking at briefs in a case like McDonald or Heller–those are originalist!

The arguments used by the challengers to the ACA were pragmatic and grounded in a slippery slope/broccoli argument. What Madison thought seems to have been an afterthought.

Update: Mike Ramsey replies to “a reader” (me):

 It’s obviously a difficult question how far into post-ratification history one can go and still get useful information about the understandings of the founding era.  My view is that evidence from the McCulloch/Gibbons era (1819-1824)  is weak but not irrelevant.  Some of the key leaders of the founding were still alive at that point, as were many people who had known and been heavily influence by leaders of the founding.  Marshall himself was an important voice in the ratification debates, as well as in some of the early debates over implementing the Constitution.  Moreover, many of the constitutional issues resembled ones prominent in the founding era.  As with all post-ratification evidence, I would be careful to consider the post-ratification political and institutional biases of the speaker (for Marshall, as a moderate nationalist, anti-Jeffersonian and leader of the judiciary), and I’d discount the circa-1820 evidence even more for its relative remoteness from the founding.  But I don’t see reasons for originalist inquiry to disregard it altogether — that time (and especially people such as Marshall) still had material ties to the founding.

I do think that by the end of the 1830s the link to the founding was so thoroughly broken that evidence from that time would be questionable — by then the founders were gone and the leading constitutional issues, especially expansion and slavery, were of a very different cast from the founding era.