I previously blogged about the relationship between public opinion and the challenge to Obamacare by analyzing a number of posts on the Volokh Conspiracy. In this post, I want to focus on another curious aspect of the challenge to Obamacare–namely its noticeable avoidance of any sort of originalist argument. I started writing this post some weeks ago, and never had the time to finish it, so treat this as something of a work-in-progress, and I’ll put the rest below the jump.

From the very outset, the challengers were quite clear in asserting that the legal arguments concerning the commerce and necessary and proper clauses were not based on the Constitution’s original meaning.

Way back on September 18, 2009, Randy, in noting that the “the Supreme Court has certainly not limited either the enumerated commerce power or the implied spending power to the original meaning of the text” wondered aloud whether the Court could strike down Obamacare based on original meaning: “Stranger things have happened. After all, without any precedent standing in their way, a majority of the Supreme Court decided to follow the original meaning of the text of the Second Amendment in DC. v. Heller.”

In a follow-up response to Jost the next day, Randy reaffirms the theme that the Court’s commerce clause construction is certainly in tension with its original meaning, and what is in “the written Constitution” (as opposed to the living Constitution).

Under our system, the Supreme Court has the last word on whether a statute challenged as unconstitutionality will be upheld or nullified. But it does not have the power to change the written Constitution, which always remains there to be revived when there is a political and judicial will to do so. For example, after the Supreme Court gutted the Fourteenth Amendment during Reconstruction, it remained a part of the written Constitution for a future more enlightened Supreme Court to put to good use. By the same token, the current Supreme Court can still make serious mistakes about the Constitution. Because the Constitution is in writing, there is an external “there” there by which to assess its opinions.

But there is one final twist: if the Supreme Court adopts a “presumption of constitutionality” by which it defers to the Congress’s judgment of the constitutionality of its actions–as it has and as “judicial conservatives” urge–and the Congress adopts Professor Jost’s view that “unconstitutionality” means whatever the Supreme Court says, then NO ONE EVER evaluates whether a act of Congress is or is not authorized by the Constitution. A pretty neat trick–and a pretty accurate description of today’s constitutional law.

The seminal report released by the Heritage Foundation, authored by Randy Barnett, Nathaniel Stewart, and Todd Gaziano on 12/9/09, introduces the notion that the law is in fact, drumroll, “unprecedented,” and unconstitutional, as it attempts to regulate inactivity.

An individual mandate to enter into a contract with or buy a particular product from a private party is literally unprecedented, not just in scope but in kind, and unconstitutional either as a matter of first principles or under any reasonable reading of judicial precedents . . . Yet, the mandate to purchase health insurance is not proposed as a means to the regulation of interstate commerce; nor does it regulate or prohibit activity in either the health insurance or health care industry. Indeed, the health care mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. By its own plain terms, the individual mandate provision regulates no action. To the contrary, it purports to “regulate” inactivity by converting the inactivity of not buying insurance into commercial activityTherefore, because this claim of power by Congress would literally be without precedent, it could only be upheld if the Supreme Court is willing to create a new constitutional doctrine

However, in one of the final paragraphs, the report contends that in light of Heller, five Justices on the Court were sympathetic to originalism. These Justices could enforce the original meaning of the Constitution, in the absence of countervailing precedents:

Furthermore, the 2008 case of District of Columbia v. Heller shows that a majority of the current Court takes the text and original public meaning of the Constitution quite seriously, especially when considering issues not controlled by existing precedent. A constitutional challenge to an individual health care mandate would be considered an opportunity by the Justices who made up the Heller majority to further vindicate their commitment to text and history in evaluating claims of federal power.

In Randy’s 2010 article “Commandeering the People,” he acknowledges at the outset that the mandate violates the original understanding of the commerce clause.

Thus, under the original meaning of the Commerce Clause, as affirmed by the Court, Congress lacks any power over the health insurance busi- ness. The insurance business, like the businesses of manufacturing or agriculture, is to be regulated exclusively by the states.

Or, more clearly stated in a footnote, “As suggested in Part I, both the regulations imposed on insurance companies, and the insurance mandate imposed on individuals, most likely exceed the original scope of the enumerated powers of Congress. ”

However, in United States v. South-Eastern Underwriters–in a decidedly unoriginalist opinion–Justice Black reversed Paul v. Virginia, which had held that “issuing a policy of insurance is not a transaction of commerce.” In his argument, Randy concedes that South-Eastern, and its progeny, is a valid precedent, so does not challenge Obamacare as violative of the original meaning of the commerce clause.

It is not my purpose here to demonstrate that the New Deal Court was wrong and even disingenuous when it claimed that the power to regulate the insurance business was justified by original meaning, though I do not mind recalling the Court’s willingness to ignore a seventy-five-year-old well-entrenched precedent to uphold the post-New Deal powers of Congress. Nor will I be contesting the constitutionality of the individual mandate on the ground that it violates the original meaning of what the Constitution says.

Instead, my claim is that the mandate is unconstitutional in the second sense: based on what the Supreme Court has said in its Com- merce and Necessary and Proper Clause decisions, presented in Part II—and also in its tax power decisions, presented in Part III.  Existing doctrine reveals the individual mandate is unconstitutional even if we assume that Congress has the power to regulate the in- surance business that the New Deal Supreme Court gave it in South- Eastern Underwriters.

In his Cato Constitution Day Address (analysis here), Randy similarly answered why he did not pursue an originalist challenge.

“Doctrines certainly constrained us in our challenge to the ACA. We might liked to challenge the insurance regulations as outside the bounds of the original meaning of the commerce clause but we were definitely foreclosed by such an argument by the 1944 case of US v. South Eastern Underwriters.” (Around 26:00)

Elsewhere, Randy restates that his opposition to the ACA was not grounded in originalism:

When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of “constitutionality”: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action. Because of my well-known view that the text of the Constitution has a meaning that is independent of the opinions of the Supreme Court–a meaning that must remain the same until properly changed–as well as my exchanges with Orin on this blog, readers may be forgiven if they think my constitutional objections to the individual health insurance mandate are based on the original meaning of the Constitution–or what Orin calls the Constitution as it “ought to be.” But I have been very clear in my publications and media statements that I am not offering an originalist objection to the individual health insurance mandate. Under the original meaning of the Constitution, for example, Congress would have no power to regulate the health insurance business since insurance contracts–like the practice of medicine–are not “commerce,” which is why both activities have traditionally been regulated by the states. But I have not made anything like this objection; and neither have the Attorneys General in their lawsuit.

Instead, I have objected that the mandate that individuals purchase health insurance from a private company is unconstitutional under existing Supreme Court doctrine–the second of the three senses of unconstitutionality.

In this October 17, 2010 post, Randy, in responding to Orin, notes differences between the challenge in McDonald–which was originalist and asked the Court to overturn Slaughter-House–and the Obamacare challenge–which required overturning no precedents:

First, and most importantly, in McDonald, in addition to challenging the Chicago gun ban, which most observers (Orin included) believed would succeed, the challengers were also seeking the outright reversal of longstanding Supreme Court precedents on originalist grounds — in particular, the Slaughter-House Cases, Cruikshank, and Presser. In contrast, in the challenges to the mandate, the challengers are resting their case on their interpretation of existing Supreme Court precedents. In particular, they rely on the long line of cases that analyze the “class of (intrastate) activity” being regulated to see if it is either “economic” or “essential to a broader regulation of interstate commerce.” . . . Of course, because the challengers of the mandate are basing their challenge on their reading of existing doctrine, rather than any claim about the original meaning of the text,

That is certainly a good distinction, but doesn’t answer why. In his remarks at Cato, Randy suggests that precedents, such as South-Eastern Underwriter, foreclosed an originalist attack. Surely, the same could be said about McDonald. Justice Scalia, the patron saint of originalism, openly scoffed at overturning a precedent, a theory that he deemed the darling of the Professoriate. Only Justice Thomas was willing to overturn that precedent. However, Alan Gura and his colleagues pushed that argument hard, supported by many prominent originalists as amici, including Barnett. I address the dichotomy between Heller and NFIB in this post about my “5 Lessons from The Health Care Cases” article.

As Randy noted in this April 2012 post:

 I have never rested my claim that the individual insurance mandate was unconstitutional on the original meaning of the Constitution, and neither did the parties to the lawsuit.  This entire case was pursued under existing post-New Deal Commerce Clause and Necessary & Proper Clause doctrine.

Jack Balkin’s comments from July 2010 is on point:

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.

Why would an originalist challenge about the commerce clause be “off-the-wall” at this point? Simply because of South-Eastern Underwriters?

Ilya Somin [Update: Correction-Somin wrote an amicus brief for the WLF separate from Kopel, Natelson, and Lawson]. In addition, Dave Kopel, Rob Natelson, and Gary Lawson did author an amicus brief that focused on the originalist meaning of the Necessary & Proper Clause (discussed here). Dave Kopel and Lawson wrote an article in Yale Law Journal Online here.

THE WAY the Constitution has been interpreted over the past seventy years has meant that, with some exceptions,2 the Necessary and Proper Clause has no justiciable meaning, the Privileges or Immunities Clause has no justiciable meaning, the Ninth Amendment has no justiciable meaning, the Tenth Amendment has no justiciable meaning, the Commerce Clause has no justiciable meaning, and the unenumerated police power of the states has no limit.

The challenge to Obamacare could have been a tour-de-force of originalism touching most, if not all of these bases, seeking to restore the original understanding of the Necessary and Proper Clause (was the mandate both necessary and proper), the commerce clause (is regulating insurance, let alone activity/inactivity, within the original enumerated powers of Congress, the 10th Amendment (does the original conception of the rights of the states and the people allow the federal government to compel mandates). While the Privileges or Immunities Clause only applies to the states, a general due process liberty challenge, perhaps coupled with an ununmerated rights argument under the 9th Amendment, could have been used to assail Obamacare as a violation of individual liberty–should we not construe this law with a Presumption of Liberty, rather than a Presumption of Constitutionality? Why settle for arguing the case within the confines of precedents from the last 70 years that have “redact[ed]” out portions of the Constitution?

I will address these questions in some depth in a few articles I’m working on.