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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law

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Whole Constitutionalist: But the mandate was correctly upheld under taxing power. Because the 1788 Constitution's text allows Congress to tax for the "general welfare," it may use tax burdens, like the penalty for violating the mandate, to deter nationally-detrimental financial behavior that undermines the general welfare.

Conservative: I disagree. And regardless of the source of federal power, forcing a purchase still violates individual liberty.

Whole Constitutionalist: The constitution protects individual liberty from federal and state action to the same degree, and the ACA is no more invasive than many valid state-level economic mandates. Due process clauses limit both Congress and the states, and precedent upholds, against liberty claims, states requiring citizens to buy many things, such as food for children and safety features for homes. If economic liberty extended so far as to invalidate the ACA, it would also invalidate state building codes, child welfare laws, et cetera--which makes no sense.


The individual mandate's loudest opponents combined a general hatred of the policy itself with a too-narrow appreciation of our constitution; others argued federal power to be limited by economic liberty principles beyond what due process precedent teaches, an argument that also disregards our history.

The ACA, instead, respects the American concept of constitutional liberty, which emerged from two watershed transitions. First, in Reconstruction we responded to our depleted trust of individual states with basic rights of their inhabitants by adopting amendments that limited state governments--abolishing slavery (in the Thirteenth Amendment), providing several generally-framed rights protections (in the Fourteenth), and precluding racial discrimination in voting (in the Fifteenth). The Fourteenth Amendment's broad provisions now limit states to a degree very similar to the Bill of Rights' limits on federal action. For over a century, understanding of individual liberty thus has developed more in the frequent Fourteenth Amendment "due process" claims against state governments than in the fewer cases against the federal. But in general, any limits constitutional liberty places on states also restrict the federal government, both being subject to identically-worded due process clauses. Likewise, the long list of cases denying the much-more-numerous challenges against government action in various states has established a broad scope of things government--state or federal--may require without infringing liberty, a scope the ACA does not exceed.

Second, beginning in 1937, the Court reversed its decades-long practice of second-guessing legislation that affected economic interests. Judges are not suited to that inquiry, and those economic interests are shared by political majorities that wield power sufficient to influence legislation. Since then, close scrutiny has been applied only to interests lacking effective political power, such as the interests of racial minorities, while asserted infringements of economic liberty are subjected only to requirements of rationality.

The ACA rationally affects a type of general economic interest repeatedly held not violated by government regulation, for which the political process provides a constitutionally-sufficient voice, as the 2010 election cycle demonstrated. In contrast to the liberty claim Sebelius rejected, gay marriage invokes some rights that are not primarily economic. Unlike general economic interests, gay rights cannot be presumed to be sufficiently embraced within political majorities to insulate them from substantial infringement by legislatures and local municipal bodies in every state and by Congress.

American Constitutionalism Is Not Strict Construction

A "Constitutional conservatism" that entails monotextualism is neither constitutional nor conservative. The strict construction approach defies the American legal tradition and founders' intent. It is anti-Declaration of Independence and rejected even by Scalia. Adherents may be blinded to its illegitimacy by the lure of it providing another argument against federal power or by their dislike for certain individual rights or constituencies. Those who stoke popular belief in strict construction undermine the perceived legitimacy of Court opinions, steering discourse away from genuine constitutional questions. That obscuring of constitutional reality impedes the rule of law. And limiting constitutional development to formal amendments would contravene the conservative values of incrementalism and avoiding central planning.

We all agree that resolving constitutional questions should start with and rely extensively on the 1788 Constitution, as amended. Giving substantial weight to that text both is required by our democratic consensus and fulfills pragmatic and rule-of-law goals, limiting judicial discretion to only what is necessary for constitutional government. Still-challenging questions of degree and appropriate limiting principles for that discretion dominate the constitutional discourse among judges, academics, and lawyers. But the public needs to be better informed of the nature of that debate.

In a more-genuine public debate, presidential candidates would not pledge to "put judges . . . on the bench, . . . who will strictly interpret the Constitution," as George W. Bush did in 2000, nor would senators brand a nominee unfit to serve because she believes "judges may determine what . . . words [of the constitutional text] actually mean," as Orrin Hatch said of Justice Kagan at her 2010 confirmation hearing. Instead, even conservatives might ask judicial candidates to describe the "principles that would limit their discretion when fulfilling the duty to articulate and apply unenumerated constitutional rights"--engaging a genuine issue. All participants in that debate would be whole constitutionalists of some sort, with conservatives likely advancing stricter sets of principles to govern judicial discretion. Changing the discourse in that way could lessen the taint of outright illegitimacy of each side's argument in the eyes of the other. And so reframing the public debate as competing--yet legitimate--arguments could diminish outrage from the extreme right and left, enhance the reputation of the Court and judicial appointments process, and improve the quality of public constitutional discussion in general.

Because to believe the federal constitution imposes limits on states' regulation of guns one must also reject strict construction, America may be ripe for that sort of progress.

Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.

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Darren Latham, associate professor at Florida Coastal School of Law in Jacksonville, teaches constitutional law, comparative law, and international commercial law courses and writes on constitutional history and theory.

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Is Constitutional Conservatism Neither? How Mistaking Our Nation to Be Constituted by One Document Offends Rule of Law


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Most constitutional scholars, constitutional law p... by Darren Latham on Thursday, Jun 13, 2013 at 9:23:44 AM
of the U.S. and you'll see that the Constitution i... by Daniel Geery on Thursday, Jun 13, 2013 at 1:06:06 PM
Any legal system which fails to accord rights to t... by Vietnam Vet on Thursday, Jun 13, 2013 at 5:52:07 PM
I agree with much of this post. On the second poin... by Darren Latham on Sunday, Jun 16, 2013 at 11:54:42 PM
It is the spirit, not the text that counts. And ev... by BFalcon on Thursday, Jun 13, 2013 at 6:02:44 PM
I couldn't agree more. This is a well written, tho... by Opacus Black on Thursday, Jun 13, 2013 at 7:39:29 PM