Barnett on “Constitutional Conservatives” and “Judicial Conservatives” in NFIB v. Sebelius

September 7th, 2012

Randy Barnett reviews Akhil Amar’s new book, “America’s Unwritten Constitution,” in the WSJ. Before I address Randy’s analysis of the book, I would first like to focus on some of our Godfather’s explication of NFIB v. Sebelius–as it is somewhat in line with my recent thoughts about how this case highlights a broad jurisprudential divide.

Randy echoes a theme Joel Alicea’s developed in his analysis of a break in conservatives in the last few decades. First there are the old-school conservatives, in the mold of Bickel, whose focus is on restraint, and not striking down popularly enacted laws. This is evidenced by Roberts’s opinion in NFIB. Second, there are the new school conservatives, in the mold of Thomas (and to a lesser extent Scalia) who are not as opposed to striking down a law when it is inconsistent with original meaning. Randy calls the former school “judicial conservatism” and the latter “constitutional conservatism”–most recently associated with the Tea Party.

Mr. Amar’s book arrives at a turning point in constitutional law. There is for the first time a popular political movement on behalf of the written Constitution, especially its power-constraining clauses. This “constitutional conservative” movement is famously associated with the Tea Party, but extends well beyond. Constitutional conservatives don’t yearn for a bygone age of Supreme Court rulings. They realize full well that the Supreme Court once sanctioned separate-but-equal and a host of other sins. Instead, they desire to see the whole document enforced, not just selected parts.

Take the Second Amendment. Until 2008, the individual right to keep and bear arms had never been protected by the Supreme Court. Constitutional conservatives applauded the court for upholding this right in District ofColumbia v. Heller and then, in 2010, for applying that ruling to the states via the Fourteenth Amendment in McDonald v. City of Chicago.

Such enthusiasm suggests that constitutional conservatism is quite different from the “judicial conservatism” that has dominated conservative and libertarian legal thinking for over 30 years. Rather than enforcing the Constitution, judicial conservatism emphasizes the role of judges vis-à-vis the more democratic branches. In particular, it urges “judicial restraint” and deference to Congress and state legislatures—even when what is at issue is the scope of these legislatures’ own power. Above all else, judges should strive to uphold legislation. So, for example, federal appellate Judge J. Harvie Wilkinson, a prominent judicial conservative, harshly condemned the Hellerand McDonald decisions as instances of “judicial activism.”

Judicial conservatism was most recently illustrated by Chief Justice John Roberts’s opinion in the Obamacare case, National Federation of Independent Business v. Sebelius. Having agreed with the four conservative justices that the individual health-insurance mandate was unconstitutional under the Commerce Clause, Chief Justice Roberts adopted a “saving construction” by which he eliminated Obamacare’s “requirement” to buy insurance. By converting the now infamous “individual mandate” into an “option” to buy insurance or pay the remaining “penalty,” he could then uphold the “penalty” as a tax. Then, by similarly rewriting the Medicare requirement being imposed on the states, he was able to “defer” to Congress and uphold the rest of Obamacare. In short, Justice Roberts rewrote the statute so that he could save it in the name of “judicial restraint.”

In contrast, progressive judges and professors typically emphasize a “living constitution.” By their lights, the meaning of the Constitution must evolve and grow to adjust to changing times. Living constitutionalists are famous for their elaborate rationalizations of constitutional doctrine that are unmoored from the text.

The Obamacare case exemplified all three methods of interpreting the Constitution. The four progressive justices adopted a living-constitutionalism approach in order to allow Congress, for the first time, to mandate that people engage in economic activity. The four conservative justices adopted the constitutional-conservative stance of holding Congress to its written enumerated powers. And the chief justice led from behind to agree with the conservative reading of the Commerce Clause—while ultimately “deferring” to Congress by upholding most of Obamacare.

The timing of this Op-Ed is fantastic, as just today I was analyzing NFIB v. Sebelius through these lenses. I certainly agree that Roberts fits into the “judicial conservative mold.” Though, I am not convinced that Randy’s characterization of the four conservative justices is entirely accurate.

The argument that the challengers brought against the ACA was decidedly not constitutional–at least in the originalist sense, as was in Heller. Randy and others made a very conscious decision not to bring a challenge asserting that the ACA is inconsistent with the Constitution’s original meaning. (Randy effectively conceded that it wasn’t.) Rather, the challenge was based purely on the Supreme Court’s own precedents. Even assuming that Wickard and Raich were correctly decided (a proposition that most libertarians would reject), the ACA went further than all other precedents in the past. Pardon the cliche (it never gets old for me), but this law was unprecedented.

So in this limited sense, I don’t know that the votes of Scalia, Kennedy, and Alito were constitutionally conservative in the same sense as their votes in Heller. Notice I did not include Justice Thomas in that list. His brief opinion in NFIB v. Sebelius is constitutionally conservative. He would have rolled back all precedents he viewed as inconsistent with the Constitution. Likewise, Thomas’s opinion in McDonald, jettisoning the Slaughter-House cases was constitutionally conservative. Roberts, Scalia, Kennedy, and Alito’s pathetic efforts in McDonald to maintain a precedent that everyone knows is wrong falls more into the judicial conservative mold.

Returning to the conservative Justice’s votes in NFIB v. Sebelius, I do not think they were either “Constitutional Conservative” or “Judicial Conservative.” Instead, I think the challenge launched against the ACA, which was largely grounded in what I see as a popular constitutionalist strategy, highlights a third path for conservatives on the bench. It was not grounded in some form of restraint, nor was it grounded in originalism. Of course, there is nothing novel about trying to distinguish one case from another (this case is unprecedented because it regulates activity as opposed to inactivity). However, what is novel was the popular and political support behind this challenge, from the leaders in the Republican Party, to the Tea Party, and to the American People by and large. This was a very concerted effort, closely integrated with the constitutional arguments. If the same legal argument had been presented without the groundswell of support, it would not have made it before. Rather, this popular constitutional support nearly pushed the argument over the broccoli finish line.

This third path will be the subject of a paper I am working on, aptly titled “Unprecedented.” I’ll be presenting it several times over the next few months. First, on Friday, September 14, at the South Texas College of Law. Second, on September 28 at the Medical Humanities Conference at Western Michigan University. Third, on October 19 at the Mid-Atlantic Law & Society Association at Drexel University. Fourth, on Friday, November 2 at the Loyola Constitutional Law Symposium at Loyola Chicago. Fifth, on Monday, December 3, at Larry Solum’s Constitutional Law Colloquium (I’ll post these to a Google Calendar shortly). Hope to see you around!

Oh, and going back to the review, I think this is what Judge Posner meant to write about Justice Scalia, in reverse–just with a hell of a lot more tact and grace:

Despite Mr. Amar’s best attempts to convince us otherwise, the danger of the unwritten Constitution remains. The label elevates non-constitutional authorities to a stature equal to, or even greater than, that of the written Constitution. Where Mr. Amar cannot make the written Constitution say what he wants, he can simply appeal to the unwritten Constitution to say the rest. And, judging from this book, the unwritten Constitution just happens to agree with everything Akhil Reed Amar believes is right and good.

Notwithstanding his purported textualism, in this highly engaging and thought-provoking book, Akhil Amar’s “unwritten Constitution” turns out to be just another living constitution, after all.