Sunday, June 24, 2012

Pete Morin Editorial Review 2012-7

The following was published in The American Thinker on June 15, 2012

Why the Supreme Court may find ObamaCare constitutional

I a very short time, perhaps a matter of days or weeks, the Supreme Court of the United States will issue a finding on the constitutionality of the Patient Protection Care and Affordability Act known as ObamaCare.

Both sides in the argument feel they have an excellent case for having the law either struck down, or approved by the Court. There are some considerations that I have not heard discussed, however, that could have a significant impact on the outcome.

At issue is the central question of mandating individuals to purchase health insurance, or pay a fine for not complying. The central belief in opposition to the law rested in the notion that there is no precedent for requiring individuals to purchase a product in the marketplace. Indeed, if one looks at it from that perspective, the soundness of such an argument appears genuine. The Supreme Court, however, may not look at precedent from a view of compulsion to act, but from a position that unlimited power with regards to the Commerce Clause has already been given to the legislative branch of the Federal Government. Some history and a meaning of Constitutional text is in order.

At least two schools of thought have been at odds with each other over the issue of "Originalism." Progressive thought believes, that having been written over two hundred years ago, the Constitution, as written, could not possibly answer difficult questions with regard to legislative authority in a modern era. The Conservative belief holds the view that any change in the meaning of the Constitution by what they consider to be  'activist' judges destroys the very essence of the document. In an excellent work on the value of Originalism, constitutional scholar Randy Barnett succinctly defines the Constitution's original meaning as "(o)riginalism .... entailed by a commitment to a written constitution, which is a vital means of subjecting lawmakers to limits on their lawmaking powers."(1) In other words the meaning of the words the framers used in defining the Constitution should not be confused with the intentions of the framers with regard to lawmaking. Any change in the meaning of the words in the document would destroy the original document. If we look a little closer at the Court case of Wickard v Filburn(2) decided by the Court in 1942, we see how the idea could be presented that the court effectively changed the meaning of the Commerce Clause to give the Legislative branch the power to redefine Interstate Commercial activity.

The original wording of the delegated powers given to the legislative branch reads as follows: Article 1, Section 8, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." An understood meaning of the word 'regulate' in the eighteenth century was to "make regular." This did not apply to restrictions on Commerce, but to promote the smooth flow of goods between the States. To apply an understanding of restricting the economic flow of goods would be to discern an intent by the framers which is not applicable to the original meaning. The decision in Wickard applied such an intent.

Essentially, the Wickard decision restricted an individual's ability to engage in Commercial activity even though Filburn had no intention to engage in such activity. In my view, this decision could be an implication that the Court recognized Congress's authority over all Interstate commercial activity. Restrictions to Commercial activity could go hand in hand with compulsion to give effectiveness to Congressional authority. Therefore, the individual mandate could be viewed as constitutional.

How will the judges rule? Ideological lines may hold for eight of the judges, but the usual swing vote will come from Associate Justice Anthony Kennedy. His vote could decide whether, or not, individuals will be compelled by the government to purchase products in a marketplace. Justice Kennedy did bring up the issue of a 'limiting principle', that is, if the government can force an individual to purchase health insurance then what are the limits to government compulsion to purchase any product. This is a fair question, and could swing the vote to the plaintiffs in the case. The judges could, however, look to Wickard as to sustain the power of the legislature to require Commerce by the individual.

In any event, the meaning of the words in the Commerce Clause have been changed thus leaving the original document, in my view, as a relic of history. Shame on the Court, and us, for letting it be so.

(1) Randy E. Barnett, "Restoring the Lost Constitution, Princeton University Press, 2004, 88
(2) Wickard v Filburn, 317 U.S. (1942)