I have not been following closely the liberal commentariat's discussions of the ObamaCare case before the Supreme Court just because I have doubted it would be very educational to do so. But for some reason this piece by Mr. Chait caught my eye. Surely this must be an odd situation? Though in reality, I realize, not really. A writer that even I have heard of, writing for a major magazine, makes the claim that the whole entire wing, or subset, of the legal profession, which includes perhaps a majority, but anyway almost certainly at least 40 percent of the Supreme Court, many practicing lawyers, quite a few (if far less than a majority of) law professors (including me) and, if recent polls are to believed, about 60 percent of the American people, is not just incorrect in their legal views of the constitution, but completely unhinged, nuts, crazy, just wildly and bafflingly wrong. Gosh, this is a fellow who is very confident indeed of his constitutional theories.
Whence this confidence? Well, I see he is a graduate of the University of Michigan, one of the great public universities. I do not see that he went to law school, which would at least have given him the chance to learn about the Constitution, though hardly insured sadly that he would have done so. I am not seeing any history of profound research about our fundamental law, however. Hmmm. Well. That would make high confidence much easier to attain.
I for one think the issues before the court in Florida v. HHS are in fact profound and anything but easy. (I don't see how anyone could listen to the oral arguments and think otherwise.) One way to think of it might be to say that our republic has reached a point where it may have to make a choice, via its supreme judicial body, whether a certain core limitation on the powers of the federal government will be left behind as a sort of residuum of political and legal evolution, or to the contrary kept and propped back up as something that we intend to keep as essential to our form of government. The argument that if Congress can compel an individual to buy something, even something as specialized as a health insurance policy, as an exercise of its power to regulate interstate commerce, it would in fact then have a plenary police power of a sort traditionally understood only to belong to the states, is not a trivial argument in the least. To the extent it has not been entertained seriously in some, perhaps most elite law schools, that is because those faculties, for reasons having more to do with their own politics than with the Constitution, just would not allow it to be entertained on their premises. But the failure of a particular academic view to triumph over the legal profession and the judiciary is not evidence that the lawyers and judges are nuts. The nuts, dare one suggest, might be found more abundantly in the academy and the journalists who take their views as gospel. Look, long ago I walked out of a class at the Yale Law School when I realized that the point of the class was to advance the view that the owner of a private book store -- this was the whole point of the class, mind you, not just some throw away suggestion -- should not be permitted under the First Amendment to sell just whatever books the book store owner wanted to and only those. No, under the First Amendment the government had the power to tell him what he could and could not sell. Seriously. You could say I should have stayed in the class to broaden my mind, but trust me, I was getting this sort of thing just by breathing the air. While there might have been something self-consciously daring in the most oliagenous academic sense about taking this view, there was nothing remotely shocking about it at that time and place. But the seminar I took from Judge Bork (for whom thank God) at which he suggested the Constitution should perhaps be read rather like we would read a contract, first on the basis of the plain meaning of its words and then according to what we could figure out about what the people who wrote it were trying to say, well, that really was daring, as the frosty reception he got from his colleagues indicated. To understand this world, you almost have to be Alice, and to be governed by its rules would be like being a subject of the Red Queen. One of its indignities is that you have to tolerate being called crazy.
It is part of the problem in which we find ourselves that someone like Chait, through no fault, or more fairly perhaps, little fault of his own, can maintain in good faith, as he probably could, that he has spoken to many luminaries at Harvard and Yale and the rest, and they have all told him, and they probably have, that no sensible person could possibly think that Congress's being given just a power to regulate interstate commerce somehow limits it merely to the power to, well, regulate what some fellow circa 1790 would think of as interstate commerce. It is so much, much more than that! This is what the worthies have settled on and the rest of us, even up to a majority of the people and maybe even the Justices of the Supreme Court, just have to live with it. Chait probably has spoken to these folks and this is probably what they have told him. He's probably not entirely to blame.
There are different ways to deal with this peculiar situation. One would be to try to convince somehow or other this particular legal academic elite that they should consider that they might be wrong. You could beg them "in the bowels of Christ" as Cromwell did the Scots , to "think it possible that [they] may be mistaken." But that would be a complete waste of time, and would also deeply offend their secular sensibilities. The polite and the charitable thing to do, I think, is to let them, like a loud party being carried on in the basket of colorful hot air balloon, just float gently away, to where one knows not, while the rest of us stay behind and figure out how we ought to govern ourselves under our stubborn, old Constitution. If it comes to this, as I hope, it would be indeed a remarkable thing. It would be a remarkable thing, and a cause for great celebration and gratitude, if instead of liberating power from the Constitution, the whole objective of what you might call progressive constitutional law and theory, this party instead liberated itself from being relevant except to itself. It would be a great and unexpected victory for the permanence, the vitality, the rule of law.