Federalism, Mandates and Individual Liberty
62 Pages Posted: 19 Feb 2015
Date Written: February 17, 2015
This article presents the missing federalism and individual liberty portion of Chief Justice Roberts’ health care case opinion. It illuminates and reinforces the commerce power and limited and enumerated powers arguments he makes there just as the Tenth Amendment and the doctrine of federalism more generally illuminate and reinforce the commerce power and the doctrine of limited and enumerated powers in constitutional law and doctrine. It also answers and explains the claims made by the Chief Justice’s critics on and off the bench that his opinion and similar arguments made by like-thinking lower court judges and law professors use a semi-respectable cover of federalism and enumerated powers arguments to mask their real constitutional doctrine and goals — turning back commerce power doctrine to the bad old days of Hammer v. Dagenhart and economic due process doctrine to the much-maligned case of Lochner v. New York. These critics, in effect, take the Chief Justice and his supporters here to be conservative deconstructionists, intent on reversing the status and valorization of the current constitutional canon and anti-canon.
The Chief Justice’s critics are right to say that his opinion is based on (largely unstated) individual liberty grounds, but they are wrong to charge that these are economic due process grounds. The unconstitutionality of individual economic mandates can be established without turning back the constitutional clock or overturning modern precedent. It can be better accomplished in a doctrine of federalism and individual liberty fully consistent with Supreme Court precedent since 1937, including the health care case. This argument brings together the doctrine of the Court’s state anti-commandeering cases and their Tenth Amendment/individual liberty decision in Bond v. United States to argue for the unconstitutionality of individual economic mandates and appeals to the spirit as well as the letter of the Constitution.
These critics misperceive the differences between their constitutional vision and that of Chief Justice Roberts, taking them to involve a difference in canons, when instead they arise out of a difference in constitutional gestalts. The two sides here do not follow different cases; they only have different takes on the same cases. Chief Justice Roberts’ critics overlook the view of federalism and individual liberty here presented, mainly because there is no logical space for it in their constitutional worldview which, for example, sees the Tenth Amendment as merely a truism. For this reason, they wrongly conclude that those holding opposing views can only do so because they reject post-1937 constitutional precedent and doctrine and wish to bring back Lochner, Hammer and the constitution in exile.
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