Constitutionalist v. Non-Constitutionalist Arguments in The Health Care Cases

November 1st, 2012

A common criticism of the Tea Party is that their view of constitutional originalist history is skewed in favor of achieving desired ends in the courts, such as striking down the Affordable Care Act. I won’t comment on that critique directly, though I think a broader point is salient.

Even assuming you disagree with the Tea Party’s view of history (see Garett Epps’s new book Wrong and Dangerous), their argument is a constitutionalist one, grounded in some vision of the history. The opponents of the Tea Party, that supported the constitutionality of the ACA, had a much tougher job grounding their view in some vision of the constitution. Jack Balkin and others tried, but you did not see protestors in favor of the ACA holding up signs saying defend the Constitution. Their signs focused, rightly, on the costs of healthcare and problems of accessing it.¬†Nancy Pelosi and other progressive politicos openly scoffed at the notion that the Constitution is even relevant.

The importance of grounding an argument in the Constitution–even if the argument is flawed–has been an important aspect of our constitutional history.

Think of Lysander Spooner. Spooner observed that the word slavery was nowhere to be found in the Constitution. Therefore slavery was unconstitutional (I am oversimplifying grossly). But, of course, the Constitution did have a 3/5 clause and a slave migration clause. Spooner’s argument was certainly grounded in the Constitution, but not unassailable.

Think of Susan B. Anthony. Anthony attempted to vote based on the 14th Amendment, which guaranteed equal protection to all persons, not all men. This is a valid textual argument. Though, it is largely undercut by the fact that Section 2 of the 14th Amendment speaks to male suffrage, and the 15th Amendment was ratified to give men of all races the right to vote. (See my article commenting on the implications of this history for understanding the 19th Amendment).

Likewise, let’s think of the Tea Party. They acknowledge (as they must) that the Constitution gives Congress the power to regulate interstate commerce. The Supreme Court has defined commerce in terms of activity. So inactivity is not commerce. You may agree or disagree with this conclusion, but it is in the same realm of possibility as other, earlier, more popular constitutionalist arguments (in my mind it is much more persuasive that Spooner or Anthony’s arguments). But it is in fact a constitutional argument. And when the argument is framed in terms of the Constitution, it gains a much more power and force.

The opponents of the challenge were not so successful in making constitutionalist arguments.

This may, or may not have had something to do with the success of the challengers, though it should be studied for future constitutional challenges.