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Constitutional Law Is Supposed to Be Different


Constitutional law is supposed to be different from other types of law. But the Obamacare litigation headed to the Supreme Court shows that liberal interpreters of the Constitution have forgotten the distinction.

In common law, intended to maintain the continuity of legitimate expectations, later rulings carry more precedential weight than earlier rulings. Similarly, later legislation can change earlier laws. But the Constitution is supposed to remain “the supreme law of the land;” later deviations are not to create precedents that effectively re-write the Constitution.

Nowhere is the distinctiveness of constitutional law made clearer than in Federalist 78, by Alexander Hamilton, ironically the most “big government” of our founders.


“[C]ourts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.”

“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

“[T]he courts were designed … to keep the [legislature] within the limits assigned to their authority.”

“[W]here the will of the legislature, declared in its statues, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

“No legislative act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

“[I]t will be the duty of the judicial tribunals…to guard the Constitution and the rights of individuals … “

In Hamilton’s words, as in those of many of America’s founders, courts must actively maintain constitutional rights against executive or legislative overreaching of their enumerated powers. And that maintenance requires that later divergent precedents are not allowed to preempt the Constitution’s meaning.

However, the liberal “living Constitution” approach has turned the argument of Federalist 78 on its head. Divergent precedents are substituted for the Constitution, which effectively become the “new and improved” highest law of the land

Perhaps the most striking recent example comes from University of California, Irvine, Law School Dean Erwin Chemerinsky, a leading liberal Constitutional interpreter, in “Healthy care reform is constitutional,” written for Politico when Constitutional challenges to Obamacare made it clear it would end up before the Supreme Court.

In asserting that constitutional challenges have “no legal merit,” Chemerinsky makes only one direct reference to the Constitution — Article I, Section 8′s Commerce Clause. Even then, his reasoning was not based on the Commerce Clause, but that “The Supreme Court has held that this included authority to regulate activities that have a substantial effect on interstate commerce” (a precedent which allowed the Commerce Clause to be vastly expanded, creating the sole supposedly constitutional justification for the far-reaching new federal regulatory powers that have since multiplied).

Unfortunately, Dean Chemerinsky ignored the Commerce Clause’s application for a century.

Federalist 11 described the Commerce Clause as “a prohibitory regulation, extending … throughout the states,” without which, “this intercourse would be fettered, interrupted and narrowed.” Similarly, Federalist 42 described its role as one of “restraints imposed on the authority of the States” to restrict interstate commerce, rather than authorizing federal dictation of anything remotely related to commerce.

Federalist 45 cemented the Commerce Clause’s narrow scope: “The powers delegated…to the Federal Government, are few and defined … The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and prosperities of the people; and the internal order, improvement, and prosperity of the State.” This stringent constraint on federal power made the Commerce Clause one “from which no apprehensions are entertained.” That last statement is particularly revealing, since founders determined to create a limited federal government with only enumerated powers would not have accepted a clause now jokingly called “the everything clause” in law schools, much less without apprehension about how it could turn a limited federal government into a virtually unlimited federal government.

Until 1887, the Commerce Clause was solely invoked to overturn state restrictions on interstate commerce. But then courts began re-interpreting its ban of state-imposed restrictions into an open invitation to almost unlimited federal dictates, particularly in Wickard v. Filburn, in 1942 (the precedent Chemerinsky refers to as definitive constitutional interpretation of the Commerce Clause).

Justice Jackson asserted that “Even if appellee’s activities be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” In other words, the federal power to make interstate commerce regular was twisted to allow banning (far from “removing impediments” to) production (not commerce) occurring in a single state (not among states), on someone’s own private property (which Federalist 45 clearly placed under State control). Anything judged to have a “substantial” effect on commerce (now often equivalent to “having any tenuous connection to”) became fair game for federal regulation.

While never again referring to the Constitution itself, Dean Chemerinsky then uses various versions of “the Supreme Court has held” (or said) seven more times in his article, as if multiplying such precedents proves Obamacare is constitutional.

However, four of those references are to cases that accepted the Wickard precedent (while two important cases limiting its application were omitted), so they do not really represent additional precedents, for the question is whether Wickard‘s ruling upholds the Constitution, making it a valid precedent, or whether it is inconsistent with the Constitution, in which case it should be considered invalid.

Yet another reference to Wickard was that “the Supreme Court never has said that the commerce power is limited to regulating those who are engaged in commercial activity.” However, whether the Supreme Court has said that is irrelevant, since a century of usage made clear that only commercial activity was in view (and, at least as important, the power envisioned was the power to strike down state restrictions on interstate commerce, not to find some connection to commerce in order to impose federal restrictions on it).

One of the two other Supreme Court references Dean Chemerinsky made was that “Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend for the general welfare and has left it to Congress to determine this.” Unfortunately, that precedent is also inconsistent with the original understanding of the General Welfare clause. As James Madison, “the father of the Constitution” put it, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions…the phrase…was always understood as nothing more than a general caption to the specified powers…” Further, “If Congress…are the sole and supreme judges of the general welfare…everything… would be thrown under the power of Congress … “

After citing such Supreme Court precedents, Dean Chemerinsky concluded that they proved that a challenge to Obamacare “has no basis in the law.” However, virtually every case relied on a serious deviation from the Constitution. In fact, two of those precedents referred to (but not identified) — Wickard v. Filburn and Helvering v. Davis — were the first two examples in Robert Levy and William Mellor’s The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, and two more — Gonzalez v. Raich and United States v. Butler — were singled out for dishonorable mention. Therefore, it is clear that if the Constitution itself is still considered “the highest law of the land,” rather than precedents that twist it, there is indeed an overwhelming case for overturning Obamacare.

That is why the distinction between constitutional law and other types of law when it comes to precedents, is so important. Should we be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? After all, if the meaning of the Constitution can easily be changed by innovative judicial interpretations, rather than being required to attain the degree of consensus necessary to survive the difficult process spelled out by our founders for constitutional changes, then it cannot be the highest law of the land in practice.

In an important sense, what is at stake in the Obamacare case is the dominant pattern of Supreme Court activity we have seen since the 1930s. Liberal courts create new rights, expanding government powers or eroding freedoms from government control, then conservative courts, out of misguided deference to those precedents, leave them in place. They often make things worse by building further precedents upon them, rather than rolling them back.

Further, if the Supreme Court must defer to earlier precedents, there is no respectable defense for those activist rulings (such as from the New Deal and Warren courts) liberals are now so desperate to defend, since they clearly deviated from earlier constitutional precedents.

Principled interpreters of the Constitution do not advocate overturning precedents that protect citizens from government abuse, which was the primary purpose of the Constitution. That is the essence of what they wish to maintain. But doing so requires overturning laws and precedents blatantly inconsistent with it, to reinstate those rights and protections that have been eroded since it was written.

If the Supreme Court follows the Constitution, Obamacare will be overturned. If Wickard‘s almost unlimited discretion is further expanded (to whether the court will, for the first time, hold that Congress has the power to override non-commerce (choosing not to buy insurance) in the name of regulating commerce), it will be upheld.

The Supreme Court’s consideration of Obamacare offers both hope that important constitutional restrictions on the federal government will be reestablished and risk that they will be further gutted. As Chief Justice Rehnquist wrote in the 1995 Lopez ruling (one of the cases omitted by Chemerinsky), “If we were to accept the government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate,” a chilling prospect for Americans and their liberties. That is, the central issue is whether the Supreme Court will reinstate the Constitution as supreme over precedents that deviate from it. If those radically different precedents are instead upheld, the limits imposed by the Constitution are already a dead letter; it is no more than what James Madison called a mere “parchment barrier” that fails to protect Americans’ rights.


Gary Galles

Gary M. Galles is a Professor of Economics at Pepperdine University and an adjunct scholar at the Ludwig von Mises Institute. His research focuses on public finance, public choice, economic education, organization of firms, antitrust, urban economics, liberty, and the problems that undermine effective public policy. In addition to his most recent book, Pathways to Policy Failures (2020), his books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014), and Apostle of Peace (2013).

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