Chemerinsky on the Constitutionality of ObamaCare: Kinda Right on the Constitution, Wrong on Liberty

In today’s LA Times, Dean Chemerinsky argues that nothing illegal about requiring Americans to buy medical insurance.

Chereminsky finds that common objections to the Constitutionality of ObamaCare are flawed. First:

Congress has broad power to tax and spend for the general welfare. In the last 70 years, no federal taxing or spending program has been declared to exceed the scope of Congress’ power. The ability in particular of Congress to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid.

Congress has every right to create either a broad new tax to pay for a national healthcare program or to impose a tax only on those who have no health insurance.

While Chereminsky is correct that modern Supreme Court caselaw would support ObamaCare under the Commerce Clause Jurisprudence, that is not to say it is Constitution. The fact that the Supreme Court has not struck down a taxing or spending program in 70 years is more of a reflection of the Court’s departure from the original meaning of the commerce clause than an assertion on what the Constitution actually means. I have blogged about this topic before. In my mind, what is Constitution and what ought to be constitutional are one in the same.

Second, Chereminsky writes:

The claim that individuals have a constitutional “right” to not have health insurance is no stronger than the objection that this would exceed Congress’ powers. It is hard to even articulate the constitutional right that would be violated by requiring individuals to have health insurance or pay a tax.

So it is easy to articulate a constitutional right to abortion, sodomy, same sex marriage, contraceptives, assisted-suicide, and a host of other progressive causes? But it is unfathomable to imagine that the Constitution prohibits a person from being forced to purchase a form of health care, whether they want it or not, and being forced to comply with the requirements the government proscribes? And when the United States transitions to single payer (inevitable), a person will be forced onto the Government’s plan?

Yeah, doesn’t make sense to me either.


Poll: What is your favorite and least favorite clause of the Constitution?

I’m limiting this to the original constitution ratified in 1789. Not the Amendments. Not the Preamble. And not the Constitution in 2020.

My favorite clause is Article 1, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Get that Congress? You only have the powers herein granted. That is, the powers enumerated. Congress does not have plenary power to do whatever they want. OK, hopping off soap box.

First, I have to get rid of all of the provisions nullified by the 13th and 14th Amendment. These clauses are a stain on the Constitution and our Republic, and Reconstruction began the process to set things right. Surprisingly, my least favorite clause  is not the commerce clause. The original meaning of the commerce clause as an anti-discrimination principle is cool. Commerce is good. Except commerce means commerce. Commerce doesn’t mean everything. OK, hopping off soap box again.

In fact, the clause of the Constitution I abhor the most is Article II, Section 1:

“neither shall any Person be eligible to that Office [of the Presidency] who shall not have attained to the Age of thirty five Years.”

I have to wait an entire decade to run for POTUS! At least I can run for Senate in five years, but I have to wait until 2020 to become Commander in Chief. At least I’ll turn 35 in 2019, right in time to file papers. Fortunately, I am now age eligible to run for Congress. I totally forgot that my 25th birthday was my constitutional birthday. Shameful. 🙂

What are your thoughts?

Constitution in 2020: Response to Professor Horwitz

Over at PrawfsBlawg, Professor Horwitz provides a very thoughtful response to one of my comments on my liveblog of the Individual Rights Panel at the Constitution in 2020 Conference.

I wrote:

“It almost seems like the panelists want to achieve some end, and they flip through the Constitution trying to find something, anything to justify her beliefs. This seems backwards. Shouldn’t the text of the constitution inform what the law is? I do not have a political science or philosophy background, but I would imagine if this conference was entitled Political Science in 2020 or Philosophy in 2020, there would not be much of a difference. These scholars are creating brilliant theories of society, government, policy and then as a footnote, try to make portions of the Constitution support it. This troubles me in a sense. All of their concerns are valid from a policy standpoint, but from a legal standpoint I don’t get it. Or maybe, I am too naive in thinking the law has a form. Is being a formalist just foolish? If the law does not have a form, then the law is whatever smart people say it is. If that’s the case, why hide behind the veneer of a written constitution? All this talk of “norms,” “constructs,” and “infrastructures” seem like talismanic incantations of juristic concepts, but ostensibly serve as a fig leafs for the authors idea of what is right and what is wrong.”

Professor Horwitz writes in reply:

This is a well-worn criticism, one that of course is used against both left- and right-leaning constitutional theorists, and I can certainly understand its looming at this conference, for reasons I’ll expand on below.  I’m not sure, however, that it was an apt criticism of this panel.  All of us did, in an important sense, start with constitutional text — Elizabeth Emens, who spoke on disability rights, started with the Equal Protection Clause, Alice Ristroph spoke about the criminal procedure amendments, and Rick and I started with the First Amendment.

Perhaps 3 years of studying originalism at George Mason has made me somewhat of a purist to policy arguments about what the Constitution ought to be. Professor Horwitz is quite right that all of the panelists began by mentioning various clauses of the Constitution. Though, for the most part that is where the discussion ended.

But Professor Horwitz divided the speakers at the conference into 3 categories. This distinction helped put the conference into a much clearer focus

(1) Some panelists were decidedly social activists who believe the value of the Constitution in 2020 project is that it will lead to a more just society along the lines they would like to see; to some extent, constitutionalism was present but only sitting in the passenger seat for these panelists.

(2) Other panelists, and perhaps the organizers themselves, are good-faith constitutionalists who believe that there is room for a politically progressive constitutionalism and see the goal as constructing a vision of progressive constitutionalism that is both theoretically legitimate and politically saleable.

(3) Other panelists (Rick and I fall in this category, I think) are very happy to think about what the Constitution requires and think there is always room to rethink its meaning and that there is value in doing so, but we come from a variety of theoretical, methodological, and political perspectives, and don’t care so much whether the Constitution in 2020 is a progressive one or not, let alone whether it can be sold to the ranks of political progressives.

This hits it right on the head.  We are in agreement over the panelists who fall into category #1. My comment regarding the Constitution as a footnote mirrors Professor Horwit’s comment that the constitution “was present but only sitting in the passenger seat.”

I think where I disagree with Professor Horwtiz is where the boundary blurs between group #1 and group #2. I am not exactly sure what a “Good-Faith” constitutionalist is. My view of the Constitution is such that there isn’t room for a “politically progressive constitutionalism” nor room for a “politically conservative constitutionalism.” There is only room for the Constitution qua Constitution.

Professor Barnett has written about whether the Constitution is Libertarian. I think this is a different inquiry than a “Good Faith Constitutionalist” arguing that there is room for a “politically progressive constitutionalism.” While Barnett argues that the founders wrote a libertarian constitution, modern progressive scholars say that the Constitution ought to become progressive due to changing circumstances.

For that reason, I don’t see too much of a difference in practice between Group #1 and Group #2.

Posted in Constitution in 2020. Comments Off on Constitution in 2020: Response to Professor Horwitz

Justice O’Connor’s Grutter Countdown Is Ticking Away: Only 19 Years till the end of racial preferences!

After making a countdown to the 800th anniversary of Magna Carta, I recalled Justice O’Connor’s prediction in Grutter:

“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Well, Grutter was issued on June 23, 2003. So the countdown till June 23, 2028 is already ticking! Only 19 years to go!

GW Trims Night Program Due to Drop in USNWR Rankings


This year George Washington tumbled 8 spots in the US News & World Report rankings, largely due to the fact that the notorious ranking began to count evening students.

Senior Associate Dean Greg Maggs told about a dozen law school alumni at “The State of Law School” address that the school’s fall from 20th to 28th was caused mainly by an unannounced change in the way U.S. News and World Report tracks part-time law student GPAs.

“U.S. News, for the first time, without giving us any notice, said they wanted to count full-time and part-time students mixed together,” Maggs said. “Both our GPA and our LSAT [scores] fell substantially from previous years.”

So what did GW do? Simply take its lumps and accept its place as the 28th-ranked law school? Hardly. The school decided to take fewer night students. “We’ve been able to address that in a very simple way,” Maggs said. “We’ve taken less evening students.”

I began law school at Mason as an evening student, and I was extremely happy with the program.  I found that while evening students had lower GPA’s and LSAT scores, they brought a wealth of real world experiences to the classroom that young whippersnappers right out of college lacked.

If law schools really want diversity, they should focus on diversity of experience as well.

H/T Unhappy With its U.S. News Ranking, GW Law Trims Night Program – Law Blog – WSJ.

Update: Thanks to TaxProf Blog, Emperor Caron for the link

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Save the date: 6/15/2015- 800th Anniversary of Magna Carta

I’ve never been to England before, but if I go, it will definitely be for the 800th anniversary of Magna Carta.

The University of London holds a lecture annually. Should be some huge party, and we can party like its 1215!

Apparently there is some controversy over whether Magna Carta was signed on 12/15/1215 or 12/19/1215, but it seems the consensus is on June 15.

Well, starting the countdown now.

Countdown To 800th Anniversary of Magna Carta

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Original Thought: Are Members of SCOTUS Judges or Justices? Both text of Constitution and early cases use both terms.

Why are the Judges of the United States Supreme Court called Justices? In two separate places in the Constitution, members of the Supreme Court are clearly referred to as Judges. Elsewhere, the word “Justice” is used.

Article II, Section 2:

Judges of the supreme Court.”

Article III, Section 1:

“The Judges, both of the supreme and inferior Courts…”

BUT, Article II, Section 3 governing impeachment uses the term Justice:

“When the President of the United States is tried, the Chief Justice shall preside.”

Why Justice and not Judge? Should the Chief be referred to as a Justice, and the Associate Members be referred to as Judges?

Who is this Chief Justice character? Article III defines the commissions of the Judiciary to “Judges,” not Justices. And who should be the Chief Justice? Of course, history answered this question, but looking solely at the text of the 1787 Constitution leaves me scratching my head a bit.

Perhaps this is just a scriveners error. We know the drafter made several of these. I previously blogged about drafting errors in the Constitution of 1787. Is the nomenclature for members of the Supreme Court perhaps another faux pas?

Or perhaps the terms were interchangeable? I recalled there were some early SCOTUS opinions referring to the members of the Supreme Court as Judges.

To check, I searched the Westlaw Supreme Court database for:

judge /s wilson jay cushing blair rutledge iredell johnson patterson chase elsworth washington marshall johnson & da(aft 1790 & bef 1810)

For those of you fortunate enough never to have built a string search in westlaw, this looks for the word judge within the same sentence as the names of the first 15 Justices between 1790 and 1810.

Here’s a sampling of what I found:

The judges present were Chase; Johnson, Livingston and Todd.” Dawson’s Lessee v. Godfrey, 4 Cranch 321 (1808). Curious that there were only 4 Judges present to decide a case.

“MARSHALL, Ch. J. declared it to be the opinion of a majority of the judges, that this court has jurisdiction.” Matthews v. Zane, 4 Cranch 382 (1808)

“MARSHALL, Ch. J. (all the seven judges being present) delivered the opinion of the court as follows: viz.” Fitzsimmons v. Newport Ins. Co. 4 Cranch 185 (1808).

Judges Chase and Livingston dissented; and Judge Todd, not having been present at the argument, gave no opinion. So that this judgment is reversed by the opinions of Marshall, Ch. J. Cushing, Washington, and Johnson, Justices.” Croudson v. Leonard, 4 Cranch 434 (1808).

But, I also did a search for:


I wanted to see if they used the word Justice, and I found almost twice as many hits for Justice as for Judge. For example:

“Present, Cushing, Washington, Livingston and Johnson, justices.” Hodgson v. Marine Ins. Co. of Alexandria, 5 Cranch 100 (1809).

In one case, the Supreme Court used the terms interchangeably within the same paragraph:

Chase, Johnson, and Livingston, Justices, expressed themselves strongly against the practice of a judge’s leaving the bench because he had decided the case in the court below. Washington, Justice, said he should not insist upon the practice, if it should be generally abandoned by the judges. The whole six judges ( Todd, Justice, being absent) sat in the cause; so that the practice of retiring seems to be abandoned.” Rose v. Himely, 4 Cranch 241, (1808).

The members of the early Supreme Court, the closest link we have to that time, used the term interchangeably to sign their written opinions.

What does this mean? Are members of the Supreme Court Judges or Justices?

In the modern era, it makes no difference. Chief Justice Rehnquist was notorious for chastising a litigant if the litigant called him “Justice” and not “Chief Justice.” I’m not sure how kindly WHR would have taken to being called Judge Rehnquist.

I briefly checked Federalist 78 and Federalist 81, and it only uses the word “judge.”

I am likely to dig deeper into this, and may develop a law review article around this. I’d like to look how contemporary state supreme court referred to its members. Also, I’ll check out early founding documents and English courts. Maybe there was a difference.

But these are just my initial thoughts while typing late at night. Curiosity killed the cat I suppose. Anyone ever read anything about this?