One of the more remarkable aspects of the three-year long constitutional challenge to Obamacare is how the legal arguments against the law unfolded before our eyes in real time–many of them right here on the Volokh Conspiracy. These arguments went from a laugher in 2009 to commanding five votes of the Supreme Court in 2012. How did this happen? The answer, contrary to what many may argue, is not just politics or ideology. Sure that was a big, big part of it, but that was not enough by itself. There are lots of crazy constitutional ideas that go nowhere fast, and are never validated by courts. Something bigger was going on in the American collective consciousness, what is commonly referred to as popular constitutionalism. The challenge to the Affordable Care Act teed up the all-important question: Who would decide the meaning of the Constitution? Professor Larry Kramer has written that “Americans in the past [have] always c[o]me to the same conclusion: that it was their right, and their responsibility, as republican citizens to say finally what the Constitution means.”
On June 4, 2012 (three weeks before NFIB was decided), Jack Balkin penned a prescient article in the Atlantic addressing the question of how the challenge to Obamacare went, in his words, from off-the-wall to on-the-wall. Balkin explored this theme by looking at five critical groups in our society who made the case: “intellectuals, social movements, political parties, media, and the courts.”
It’s no coincidence that Balkin lists the intellectuals first. Political parties and social movements can only organize around ideas that are grounded in constitutional doctrine, that make sense, and can be easily adopted by the people (most visibly through the Tea Party). How the arguments went from being taken seriously by a small cadre of libertarian scholars to garnering five votes on the Supreme Court is a fascinating story of constitutional persuasion on related fronts: legal and populist.
This narrative is well encapsulated in a series of back-and-forths between Randy Barnett and Jack Balkin (who are excellent friends).
To Balkin, Barnett’s strategy was two-fold: on the one hand, Barnett was advancing a theory about constitutional law that was initially deemed frivolous by many academics; yet, at the same time, Barnett was also trying, through his own gravitas as a noted constitutional scholar, to convince people that his argument is not frivolous.
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 [sic] what he says is true will actually become true.
There is something of a chicken-and-the-egg dynamic at play in Balkin’s view. A constitutional theory only becomes non-frivolous when people accept it. But, before people accept a constitutional theory, it must be non-frivolous. “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.” Although Barnett was not successful in having the law struck down, his success in moving the argument onto the wall “would work a significant change in existing law”: to Balkin he “changed the practical meaning of the Constitution, and changed it a great deal.” Balkin added, “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.”
It was only with this intellectual grounding that the latter phases of Balkin’s constitutional spectrum could participate. It’s not enough for a scholar to come up with a good constitutional ideal. There must be a social movement ready to embrace those concepts. Randy Barnett commented on the nature of the political movements who supported the challenge, when he addressed the American Constitution Society’s 2011 National Convention:
[I] do want to get back to . . . the politics of [the Affordable Care Act] for a minute because I understand you had a very lively panel yesterday on original meaning . . . . But I take it that the valence in this room is kind of not all that sympathetic with original meaning. Original meaning, as far as I understand it, says the meaning of the Constitution must remain the same until it’s properly changed . . . but the opposite of [originalism], or the different position of that, is that the meaning of the Constitution evolves over time to respond to changing conditions and also to respond to political initiatives, or what my friend Jack Balkin calls social movements. That is what the alternative to original meaning is, which is the evolution of constitutional meaning according to political movements. Well, look if you guys believe in that, then obviously you may be looking at a political movement in the face.
Political movements sometimes will go in your direction, and political movements will sometimes not go in your direction. If political movements don’t go in your direction, it is difficult to rush in with that copy of the Constitution . . . and say no, no, no, it’s the Constitution . . . that stops you guys from doing it. Not if you at the same time think it’s political movements that causes [sic] the meaning of the Constitution to change . . . through judicial appointments . . . confirmed or not confirmed by a politically representative Senate. That is just the way business is done.
Not only should you not be surprised. You should also not complain. Except . . . if that day were ever to come . . . you are simply on the losing end of a democratic process, and then we have judicial restraint to fall back on. You guys have judicial restraint to fall back on in protecting the outcome of this . . . political debate that you may have lost. I just want to suggest that maybe, just maybe, the original Constitution might have something to offer you guys if and when you are ever on the losing end of a political movement.
In other words, what’s good for the goose is now good for the gander. This case turned the tables on much more than just our Commerce Clause jurisprudence. Larry Solum has referred to this shift in thinking as our now-unsettled ”constitutional gestalt.”
At the 2012 Cato Constitution Day, Randy Barnett described the nature of this reversal more bluntly:
We also have the realist fact that five Justices embraced the entirety of our Commerce Clause and Necessary and Proper Clause arguments. Critics like Charles Fried can dismiss this as emanating from the leaderless Tea Party . . . but it is now embraced by what is called the ‘Rule of Five.’ Even if the Tea Party played a role, we have long been told that this is how the living Constitution—by which is meant constitutional doctrine—evolves in response to social movements. So unless it is a living constitutionalism for me, but not for thee, if the outcome of this case was indeed impelled by popular constitutionalism, that would make it more, not less legitimate on living constitutionalist grounds.
Back in 2010, Balkin was more cynical of the nature of this change.
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 living constitutionalism. (This is one of the greatest ironies of modern conservative originalism—it is a perfect example of how living constitutionalism actually works in practice).
At the Cato Book Forum on Unprecedented last Friday (C-SPAN Book TV recorded it, but the video is not yet available), Randy alluded to Balkin’s last point, and articulated a relationship between restoring the lost Constitution and living/popular constitutionalism. I wasn’t able to take detailed notes while up on the stage (maybe Randy can elaborate on this), but I took his point to be that the meaning of the original Constitution (the one under glass in the National Archives) does not change. What does change are the ways that the people look at the Constitution, and how constitutional law develops by the Supreme Court. In this sense, the people, through social movements, have a strong connection with that original Constitution. This is a very important point that I think was not widely discussed among libertarians before NFIB (what Balkin found ironic). But since NFIB, many libertarians, and conservatives, should grapple with Balkin’s (and Reva Seigel, among others) important work on popular constitutionalism.
I explored this issue in brief in Unprecedented, and in detail in two articles I recently published. First, Popular Constitutionalism and the Affordable Care Act, which was published in a symposium issue of Public Affairs Quarterly on the ACA. Second, Back to the Future of Originalism, which was published in a special symposium issue of the Chapman Law Review on “Libertarian Legal Thought,” along with contributions from Roger Pilon, Randy Barnett, Todd Zywicki, Ilya Somin, Tom Bell, and I.
Balkin will be commenting on a talk I will give at Yale Law School on Monday, 9/23 at noon. If anyone is in the area, please stop by. I’m sure it will be a lively discussion. As well, I have a number of events this week in Washington.
Cross-Posted at Volokh.com.