Many of my contributions to this blog will riff my forthcoming tome on the Constitution and its federalism, cleverly entitled The Upside-Down Constitution. The publisher’s (Harvard University Press) release date is February 15. However, you can already pre-order the book on Amazon.com. What exactly is “upside-down” about our Constitution? Keep reading to find out.
Beneath the variegated opinions on health care issued by a divided Supreme Court, a shared subplot lurks: the strange and contentious fate of broccoli in a free republic. The conservative justices utilized the specter of a broccoli mandate to argue that the requirement to purchase health insurance exceeds Congress’ powers under the commerce clause. Justice Ruth Bader Ginsburg, writing for the minority on that issue, was at pains to say the analogy was inapt. Yet all sides are falling prey to a fallacy that illustrates the Court’s lofty self-image as the Platonic protector not just against abuse but against absurdity too.
Call it the reductio ad constitutionatum: the suggestion that a power is unconstitutional if it could be absurdly applied. In political argument, the reductio ad absurdum—questioning a premise by showing that it leads to absurd consequences—is legitimate. In judicial reasoning, though, it is less useful. Its unstated assumption is that the courts exist to protect us against our own acts of silliness—a vast understanding of judicial power. Even Earl Warren might blush.
Thus the vaunted—and strangely unchallenged—broccoli fallacy: If Congress can compel individuals to purchase insurance because it serves a public purpose, could it not also require them to purchase—and, one assumes, healthily and happily consume—broccoli for the same reason?
One reasonable answer to the broccoli question—a conservative one, for reasons presently to be argued—is: Yes. Were Congress to impose a broccoli mandate, it would not be the role of the Court to save us from such silliness, least of all if the people themselves licensed it by election. Both defining and preventing political absurdities is the job of voters, whose own responsibility for electing the representatives who crafted the individual mandate—and whose own authority to elect representatives to repeal it if they have changed their minds—was largely overlooked in the slate of opinions on health care.
As the impeccably conservative Judge J. Harvie Wilkinson has recently noted, the passage of the health care law followed an election. Its survival depends on the next one. Indeed, the Court’s decision has clarified and isolated the health care issue for political decision: This fall, voters will choose between Congressional and Presidential candidates who will have made their views on repeal of Obamacare clear. For now, the chief distinction between the individual mandate and the broccoli mandate is that voters have ratified one but not the other.
Yet the tenor of the opinions in the health care case—and especially their invocation of the broccoli fallacy—treat voters as mindless bystanders vulnerable to abuse at the hands of a Congress run amok. By contrast, the American regime understands Congress to be the most direct reflection of the people’s will. We most carefully register our opinions through Congressional elections. To indulge the caricature of Congress as an institution beyond the voters’ control—when in fact its most serious problems are the result of its immediate and excessive susceptibility to public whims—is to treat the people like a wandering flock in search of a judicial shepherd: hardly a conservative position.
And therein lies the point: If voters would be unable to see the absurdity of a broccoli mandate, the Framers would say republican government—not merely limited government—is doomed. Challenged in the Virginia ratifying convention to identify the source of virtue in the regime, Madison replied: “I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom.” Hence, he continued, the rub: “Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks — no form of government can render us secure.” One would be entitled to argue that our situation today is in fact wretched. But it is an altogether different argument, and hardly either an originalist or conservative one, to assign the judiciary the role of repairing it.
The health care case has exposed the extent to which conservatives themselves are divided on this point between those eager to pursue a judicial agenda now that they have a judicial majority and those adhering to the long-standing conservative premise that, as Federalist 78 says, the courts should exercise judicial review only in the case of “irreconcilable variance”—which is to say a judge’s opinion on the constitutionality of a given law is not the point, at least not solely so. The relevant question is whether a Congressional action lies within a reasonable realm.
Note that Chief Justice Roberts reached, albeit circuitously, for some ground on which to uphold the law—a genuine act of restraint. His opinion acknowledges that the Court is not the sole judge of constitutionality: “Resolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.” He proceeds to acknowledge the long-standing conservative principle that a judge should search for some way to uphold the law before him: “And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.” The opinion delivered from the bench by Justice Kennedy opted instead for a careful textual analysis that did not prioritize deference. Those two values—originalism and restraint—are theoretically, but not inherently, compatible, a tension conservatives must sooner or later face. In that sense, pundits have missed the point in emphasizing the incidental fact that Roberts voted with the liberals. What he actually did was expose a deep philosophical tension that conservative jurisprudence has yet to resolve.
Yet it is significant that both sides of that divide, by employing the broccoli metaphor, clung to an exalted understanding of the Court’s role. To be sure, limited government is a conservative value, and a broccoli mandate would certainly violate it. But self-government is another, especially insofar as it demands responsible and accountable behavior within the context of a political community. It dictates that what Justice Ginsburg called the “broccoli horrible” be addressed at the ballot box rather than the bar.