I have blogged a bit recently about how popular constitutionalism impacted the challenge to the Affordable Care Act. Some recent book talks, and comments from Randy Barnett have crystalized these thoughts in my mind.
In sum, the original meaning of the Constitution (capital C) doesn’t change. But what does change is constitutional law (lowercase c) as developed by the Supreme Court. Popular constitutionalism affects the latter, but not the former. The potency of popular constitutionalism derives from the extent to which the latter connects with the former. That people oppose a law is no big deal. But that their arguments sound in the Constitution, their social movements can inform constitutional law. Further, in the case of libertarian popular constitutionalists, their ideals are derived, albeit indirectly, from the original meaning of the Constitution (a government of enumerated powers and limited commerce powers). This nexus transforms a bare political argument into a popular constitutionalist argument (if you buy such things, Orin doesn’t). I’m still fleshing this out, but this is the answer I’ve given a few times to similar questions, and it seem sot have stuck.
I think this is another gloss on the argument about how originalism was relevant for NFIB even though it was not addressed directly. I discuss this at some length in my contribution to the Chapman Law Review’s symposium on libertarian thought, Back to the Future of Originalism–the notion that this popular constitutionalism brings constitutional law (lowercase c) closer to the original Constitution (capital c).
Also, my article in Public Affairs Quarterly, “Popular Constitutionalism and the Affordable Care Act” is in its final stages. Here is the abstract:
The challenge to the Affordable Care Act was waged on two fronts. The first front was the constitutionalist front. Challengers claimed that it was unprecedented for Congress to compel people to engage in commerce, and purchase health insurance. However, the second front in this battle is much less appreciated. Underneath these constitutionalist positions were popular constitutionalist social movements.
This essay, part of a symposium issue of Public Affairs Quarterly, analyzes the movement through the lens of popular constitutionalism, from its conception, to its growth, to its strengthening counter-movement, and finally to its inevitable conclusion at the Supreme Court of the United States.
First, I explore notions of popular constitutionalism, and how the will of the people impacts how the courts construe our most fundamental laws. Second, I trace how the argument against the Affordable Care Act evolved from a simple idea to a popular constitutionalist movement, brewed by groups such as the Tea Party. Third, I discuss how a progressive countermovement formed to combat the challengers, and aimed to maintain the status quo of constitutional law. I conclude by considering how the courts received these competing social movements.
The dynamics of popular constitutionalism were fully unleashed in NIFB v. Sebelius. Not only was this case unprecedented, but the challenge to it was also unprecedented.