I won’t revisit the Volokh Conspiracy’s battle royale on whether Obamacare is Constitutional. To summarize, the debate hinged, in part over whether the phrase “constitutional” should be based on whatever the Supreme Court says it means, or what the original text of the Constitution conveys.
One way the bloggers attempted to reconcile this debate was by defining constitutionality based on what “is” constitutional and what “ought” to be constitutional. Orin Kerr fell into the former group, and Randy Barnett fell into the latter.
I tend to agree with Randy, but perhaps for different reasons.
Stare Decisis for Constitutional decisions is much weaker than for other areas of the law. Namely because changing the text of the Constitution was purposefully created as a difficult process by the Framers. Justice Thomas has said numerous times that he has no problem reversing Constitutional Law decisions, no matter how long they’ve been around, if they’re wrong.
This is a formalist view, from a formalist Justice. This might sound frigthening to some theorists, but to a formalist Is and Ought are the same thing. If the original meaning of the Constitution conveys a certain understanding of the law, that IS the Law, and if the Nine had previously said something else, they OUGHT to change their opinion.
Put differently, from a strictly formalist perspective, if the Constitution IS not being properly interpreted, it OUGHT to be changed to what IT means.
Assume for arguments sake the commerce clause had an obtainable meaning in 1789. Under this formalist reasoning, the meaning of the Commerce Clause is what it was in 1789. If the Nine think different, it OUGHT to be what it was in 1789. In this case, what it IS, and what it OUGHT to be are one in the same.
I realize I’m late to this discussion, but this theory, in my opinion helps to reconcile the debate.