Pragmatism plays a role in constitutional interpretation—and stare decisis.
Recent postings on this blog suffice to tick off the Good Humor man and to compel my emergence from whatever the summer equivalent of hibernation may be.
(I am kidding. Frank and fun exchange is what this place is for.)
Re Greg Weiner’s “popular constitutionalism” argument for judicial deference in the Affordable Care Act cases: the apprehension that judicial intervention might dilute voters’ and politicians’ incentives to entertain constitutional arguments on their own accord is perfectly sensible. However, it comes with a cost: if nothing is ever beyond the judicial pale, the message isn’t that constitutionalism is too important to be left entirely to the Court; it’s that the Constitution is a joke. To my mind, that is the actual point at issue in the case. The individual mandate itself is (in my estimation) a close question. Recall, though, the way in which this dastardly statute was enacted: from the Cornhusker kickback to “deemed enacted,” from Speaker Pelosi’s “are you kidding me” to her “now that it’s passed, we can find out what’s in it” comments, the entire project was based on a brutal contempt for both republican government and constitutional forms. A “never mind” ruling, to say nothing of “we must respect the democratic process” opinion, strikes me as highly unlikely to restore popular constitutionalism. Rank, undisciplined populism seems a more likely (and frightening) response: none of our institutions work. Bring out the pitchforks.
Re brother Rappaport’s thoughtful and ingenious defense of a “Madisonian” interpretation that would limit the power of Congress to tax (and spend) for “the general Welfare of the United States” to the enumerated powers: I still don’t buy it. True enough: the enumerated powers all fit the general welfare criterion (and Mike makes a plausible argument why the redundancy—why authorize taxing and spending if the enumerated powers, in combination with the Necessary and Proper Clause, already authorize those means, need not be fatal.) However, the notion that the enumerated powers are coextensive with “general Welfare” produces a heap of trouble.
On one side, not every exercise of taxing and spending pursuant to enumerated powers can be said to enhance the “general Welfare” or for that matter to provide for the “common Defense”: countless post roads and defense installations are pure pork. (This problem isn’t a hypothetical. It produced a hilarious exchange between Madison and Jefferson in the very First Congress.) What’s the answer—that the power to tax implicitly restricts the other power to enact “necessary and proper” legislation? If that’s what the Founders meant, they sure chose a funny way of expressing it.
On the other side, oodles of “general Welfare” taxing and spending measures fall outside the enumerated powers. Suppose some foreign aid assistance to Mexico would abate the flow of illegal immigrants: while the measure would plainly aid the “general Welfare of the United States,” it isn’t covered by any enumerated power or, so far as I can see, “necessary and proper” to the exercise of any of them. I am aware of arguments to the effect that therefore, or for reasons of this sort, we cannot tax and spend for AIDS prevention in Africa or democracy promotion around the world. In charity, let’s say that I do not find those arguments very plausible; and that additional examples of the general Welfare/enumerated powers mismatch spring readily to mind.
Back to the beach.