George Will, baseball’s most articulate fan, hit a home run this morning. His examination of arguments for and against the constitutionality of Obamacare’s individual mandate takes his readers to fundamental constitutional questions and, in particular, to a dispute that has divided conservatives for decades — about the proper role of the courts under our Constitution. True conservatives, Will concludes, will demand a principled “judicial activism.” They will insist that courts exercise their authority to resist “the conscription of individuals, at a cost of diminished liberty, into government’s collective projects. So a constitutional challenge to the mandate serves two purposes: It defies a pernicious idea and clarifies conservatism.”
Since the New Deal, the Supreme Court has held that Congress’s power to regulate interstate commerce amounts to a power to regulate anything that “substantially affects” that commerce — and a power to order any means that may be “necessary and proper” for that regulation. Because uninsured people who seek free emergency‐room care substantially affect interstate commerce, Congress can regulate that behavior by ordering those people to buy insurance.
But the implications of that constitutional reading, Will notes, are boundless. If Congress can order you to buy insurance, why stop there? It can order you to exercise, and to eat healthy foods, etc. More disturbing still, it means that the Constitution itself and judicial review under it are no more.
Which brings us to that branch of conservatism that has long called for judicial deference to democratic decisions: “Such people,” Will writes, “believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, ‘judicial activism.’ ” By contrast, “more truly conservative conservatives,” Will says, see government’s primary purpose not as satisfying majority preferences but as protecting liberty — through an active judiciary, if necessary, consistent with constitutional powers and restraints.
That judicial‐restraint branch of conservatism arose, understandably, from the excesses of the Warren and Burger Courts, and it was no better defended than by Judge Robert H. Bork in his magisterial book, The Tempting of America. Speaking of what he called the “Madisonian dilemma,” Bork wrote that America’s “first principle is self‐government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” Its second principle, he continued, is “that there are some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.”
Unfortunately, that gets Madison exactly backward. To be sure, the Founders, including Madison, stood for self‐government — as against government by some fraction of the people, including a king. That was their first political principle. But their first moral principle — the reason they instituted government at all — was individual liberty, as the Declaration of Independence makes plain and the Constitution, with its doctrine of enumerated powers and its recognition of both enumerated and unenumerated rights, makes equally plain as a legal memorialization of the Declaration’s promise.
Indeed, the Founders did not throw off a king only to enable a majority to do what no king would ever dare. Instead, they instituted a plan whereby in “wide areas” individuals would be free simply because they were born free, while in “some areas” majorities would be entitled to rule not because they were inherently so entitled but because they were authorized to do so under a constitutional design. That gets the order right: individual liberty first; self‐government second, as a means toward securing that liberty.
So where did we go wrong such that today majoritarianism is dominant and liberty is too often its target — and a supine judiciary generally defers to that regime? It came out of the Progressive Era, of course, and was finally instituted systematically by the New Deal Court, following FDR’s infamous court‐packing threat. And the foundation of the constitutional inversion — from “everything that is not given is retained” to “everything that is not retained is given” — was the demise of the doctrine of enumerated powers, the idea that Congress has only those powers the people have given it, as enumerated in the document, the rest being retained by the states or the people.
And that brings us back to Congress’s commerce power. If that power were understood by the Framers and the ratifying generation as the New Deal Court read it, the Constitution would never have been ratified, and the doctrine of enumerated powers would never have been championed as the centerpiece of the document. Indeed, if Congress, under that single power, could regulate anything and everything, there would have been no need to enumerate any of Congress’s other powers. The Framers could have stopped right there.
But what is the principle of the matter? Assuming, that is, that judicial review is inherent in a written constitution that grants “The judicial Power” (Article III), and that the exercise of that power is essential if constitutional limits on governmental power are to be effected other than politically, how should courts do that in the case of the commerce power?
Unfortunately, the constitutional text alone will not answer that question; if the Framers had foreseen what would be done with the power, they probably would have written it more precisely. As with numerous other constitutional provisions, judges must go beyond the vague or indeterminate text if they’re to be faithful to the understanding of those who ratified it. Thus, constitutional structure, history, and purpose all come to the fore. Drawing on those, the principle emerges.
Consider structure: A reading of the commerce power that effectively renders many of Congress’s other enumerated powers superfluous, or that is inconsistent with other constitutional provisions, cannot be right. And concerning history and function, the power was given primarily to ensure the free flow of goods and services among the states in light of the protectionist measures states had begun to erect under the Articles of Confederation. It was, that is, a limited “free market” power — precisely opposite its understanding today. That in fact is how Justice William Johnson read the power in his concurrence in the Court’s first great Commerce Clause case, Gibbons v. Ogden: “If there was any one object riding over every other in the adoption of the constitution, it was to keep the commercial intercourse among the States free from all invidious and partial restraints.”
That is hardly, therefore, a power to regulate anything and everything that “substantially affects” interstate commerce for any reason whatsoever. It’s unfortunate that many conservative critics of the Warren and Burger Courts, with their focus on the “rights revolution” of that era, did not go back to the root of the problem, which was in the New Deal Court’s deference to the political branches and the expansion of government power that followed. Not only did that focus miss the main event, but it deprived conservatives of the powerful rights arguments that would otherwise have served to limit government’s powers. After all, the limited powers of government were granted not to “conscript individuals into government’s collective projects,” as Will puts it, but to protect their rights. If the health‐care debate serves to refocus conservatives on the first principles of our constitutional order, the health of the nation will be the better for it.