NOVEMBER 12, 2009, was a fateful date for the Constitution. For it was on that day, in the foyer of Washington’s landmark Mayflower Hotel, that the constitutional challenge to the Affordable Care Act—now known as Obamacare—was first conceived. I was at the Mayflower attending the Federalist Society for Law and Public Policy’s annual National Lawyers Convention. Shortly after 10:15 a.m., I left a panel discussion in the ballroom to join a group of friends who had gathered near the coffee to chat.
By the time I joined the group, the topic had already turned to the so-called health care reform bill that was then bottled up in a committee of the Senate. While the House had already passed its version, the Senate’s effort had been stymied by the need to get sixty senators on board so the bill could not be filibustered on the floor.
As I joined the group, my friend Todd Gaziano, who was then the director of the Center for Legal and Judicial Studies at the Heritage Foundation, turned to me and asked what I thought about the constitutionality of the pending bill. I replied that I hadn’t given the matter much thought.1
In fact, back in September, I had read an op-ed in the Wall Street Journal questioning the constitutionality of the individual insurance “requirement” that was part of the bill. My disappointed reaction was, “Well, if this is the best argument against it, then the bill must be constitutional.” A few days later, however, a debate over the op-ed erupted on the Arena, the now-defunct blog of Politico of which I was then a member.
The Arena editors posed the following question to the group: “Healthcare: Is ‘mandatory insurance’ unconstitutional?” Timothy Stoltzfus Jost, a health law professor at the Washington and Lee University School of Law, posted a caustic dismissal of any suggestion that the measure might be unconstitutional. “You are correct to invite your political experts to respond,” he wrote, “because this is not a serious legal issue.” In a lengthy post, he concluded by claiming that “a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform.”2
Although I had not been persuaded by the op-ed, Jost’s smug dismissal of any constitutional argument based on the limits on Congress’s power in the text of the Constitution provoked me to write a post that began: “OK, let’s be old fashioned and start with what the Constitution says.” I then proceeded to examine the text to find where it might authorize such an economic mandate. After finding no support for such a power in the original meaning of the Commerce Clause and the Necessary and Proper Clause, I turned to the Supreme Court’s decisions, which Jost had claimed was the Constitution.
Professor Jost had relied heavily on the 2005 case of Gonzales v. Raich, in which the Court upheld the power of Congress to prohibit someone from growing marijuana in her backyard for her own medical use as authorized by state law. I was one of the lawyers who represented Angel Raich and Diane Monson in their challenge to this application of the Controlled Substances Act, and had argued the case before the Supreme Court in 2004. Although we lost, we did receive the votes of Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas for our claim that this was beyond the power of Congress to enact.
After years of litigating the Raich case, I had become very well versed in the Supreme Court’s Commerce Clause jurisprudence—an expertise that was to become extremely valuable when challenging Obamacare. And I strongly believed that Jost, like most law professors, was overreading that case, so I replied:
As Angel Raich’s lawyer, who argued the case in the Supreme Court, I think the Court erred (6–3) in reading the interstate commerce power broadly enough to allow Congress to prohibit you from growing a plant in your back yard for your own consumption. By all accounts, however, this is the most far reaching interpretation of the Commerce Power ever adopted by a majority, exceeding the reach of the past champion, Wickard v. Filburn. But even the six Justices in the majority did not say that Congress had the power to mandate you grow a plant in your back yard. Do you think a majority would find that power today?
I then suggested that “a bare majority [might] decide this matter by reviewing the text” of the Constitution and find no such power there. “Stranger things have happened,” I observed. “After all, without any precedent standing in their way, a majority of the Supreme Court had recently decided to follow the original meaning of the text of the Second Amendment in DC. v. Heller.”3
A lively debate ensued, with my side joined by Roger Pilon of the Cato Institute and Northwestern University law professor Steve Calabresi in questioning the constitutionality of this claim of congressional power. We didn’t progress very far, but the seed of an argument had been planted in my mind: if there was no Supreme Court precedent upholding a power to make you do business with a private company, then, as it had in 2006 with the right to keep and bear arms, a majority of the justices might feel free to rely on the original meaning of the text and find no such power exists.
So, when Todd Gaziano turned to me at the Mayflower and asked if I wanted to “do something” about the pending health care bill, I immediately answered yes. “Well, if we are going to do anything,” Todd replied, “we have to do it soon,” since the Senate bill was going to emerge from committee. I told him that I would need someone to do a first draft of a paper, but Todd already had someone in mind.
That someone was a young attorney named Nathaniel Stewart. Stewart’s first draft was superb, but one particular discovery of his was crucial to how the debate unfolded: a 1994 report of the Congressional Budget Office—a nonpartisan arm of Congress—that said:
A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.4
I made that quote the epigraph of our paper, which I titled, “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional.”5 By making the “unprecedented” nature of the individual insurance mandate the centerpiece of our case, we immediately undercut claims such as the one made by Tim Jost that prior Supreme Court precedent clearly authorized such a mandate.
Four weeks later, on December 9, our paper was released, and the Heritage Foundation held a program to publicize it. Senator Orrin Hatch delivered an excellent keynote address supporting our theory, and I debated the merits of our argument with Professor Eugene Volokh of the UCLA School of Law. After the public program, we convened upstairs for a private briefing with congressional staffers.
Under Senate rules, senators may raise a point of order to object to the constitutionality of pending legislation. When they do, there must be a debate and vote on its constitutionality before the Senate may vote to pass the bill. Although senators supporting the bill will always vote that it is constitutional, in this case we thought holding such a debate could prove very useful.
We’d been told that Senate Republicans were not going to raise a point of order because their staffs could not think of a constitutional objection. Well, now we had such a theory, and a roomful of staffers was eager to hear the details.
As a result, the Senate Republicans did raise a point of order, and a debate on the constitutionality of the Senate bill was held on December 23. When the vote was taken, the entire Republican caucus voted that the bill was unconstitutional, while the Democrats were unanimous in opposition. With the failure of the point of order, the Senate was cleared to pass the bill on Christmas Eve.
Notwithstanding that the objection had failed, the debate proved to be a crucial event. Reporters started calling me to ask about our legal theory; conservative talk radio took up our argument and started publicizing it. In short, a very public buzz was starting to build.
In January I was contacted by Jim Ho, who was then solicitor general of Texas. Would I be willing, he asked, to speak with state attorney general Greg Abbott about the pending health care bill? Soon I was on the phone with Abbott, who wanted to know what, if anything, he could do to oppose the law as a state attorney general. After our call, Abbott and his staff began working with Florida attorney general Bill McCollum to organize other state attorneys general to challenge the law in court. This would prove to be a critical development.
The Senate bill to which we were objecting was never truly meant to become law. It had been devised behind closed doors to garner sixty votes mainly to get the measure out of the Senate and into a conference with the House, where the final measure would be drafted and sent back to both houses for final approval. However, with the death of Senator Edward Kennedy of Massachusetts in August 2009 and his replacement by Republican Scott Brown in a special election held on January 19, 2010, Senate Democrats no longer had a sixty-vote, filibuster-proof majority. If they wanted to enact something, their only option was for the House to accept the Senate bill, with all its faults, in its entirety. This some Democratic members of the House were reluctant to do, and so the process dragged on.
By the time the House finally passed the Senate bill on Sunday, March 22, 2010, thirteen state attorneys general, together with the National Federation of Independent Business (NFIB), were ready to file a lawsuit against the law the very next day in U.S. District Court for the Northern District of Florida. As additional states joined the lawsuit, and separate challenges were brought elsewhere by the attorneys general of Virginia and Oklahoma, eventually the number of states officially challenging the law would rise to twenty-eight, or more than half.
For the next year, with numerous lawsuits pending in lower courts around the country, I filed amicus briefs with Ilya Shapiro and Trevor Burrus of the Cato Institute, wrote op-eds for outlets such as the Wall Street Journal, and blogged regularly about the case on the Volokh Conspiracy, a law blog that was widely read by law students, law clerks, and even federal judges and justices. Other Volokh bloggers joined in.6
Like Professor Jost, the great majority of law professors continued to insist that our arguments so lacked merit they should be considered “frivolous.” A few days after the NFIB and attorneys general filed their lawsuit, one professor went so far as to blog that any attorney who signed a pleading in the pending cases was at risk of sanctions for bringing a meritless complaint.
Then the tide began to turn. On August 2, 2010, federal judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia became the first judge to hold that the individual insurance mandate was unconstitutional. The psychological effect of that ruling was enormous. Within moments of the decision, my good friend Yale law professor Jack Balkin sent me a single-sentence email: “Dear Randy: Your argument is officially not frivolous, per the E.D. Va.”
With Judge Hudson’s decision lending credibility to our theory, national attention now shifted to Florida, where the NFIB and attorneys general’s challenge was pending before federal district court judge Roger Vinson. In December, I attended the oral argument in the packed Pensacola courtroom, as I would every court of appeals argument in the pending challenges. Washington attorney David Rivkin argued the case for the challengers to a courtroom packed with reporters.
In January 2011, in a lengthy and thorough opinion, Judge Vinson held that the individual insurance mandate was unconstitutional. And, because the mandate was an essential part of the entire scheme, he declared that it could not be severed from the rest of the law. As a result, he concluded, the entire Affordable Care Act (ACA) was unconstitutional.
Attempting to quash the now-growing credibility of the case, in February the Senate Judiciary Committee, chaired by Senator Richard Durbin, held a hearing on “The Constitutionality of the Affordable Care Act.” The hearing was broadcast on C-SPAN. Along with former Reagan administration lawyer Michael Carvin, I testified that the ACA was unconstitutional. Opposing us were former acting U.S. solicitor general Walter Dellinger III, Ohio attorney general Richard Cordray, and Harvard law professor Charles Fried, who had served as President Reagan’s solicitor general and who was also my torts professor in law school.
The hearings did not have their intended effect. Carvin and I held our own under tough questioning by Democratic senators, and the Democrats’ witnesses faced challenging questions from Republicans, especially freshman senator Mike Lee of Utah. If anything, the televised hearings increased our momentum.
In the wake of Judge Vinson’s ruling, I was retained by the NFIB to help select a law firm to defend its victory against the government’s appeal to the U.S. Court of Appeals for the Eleventh Circuit, in Atlanta. After a quiet competition among some of Washington’s more elite firms, the NFIB selected the Jones Day team, headed by Mike Carvin and Greg Katsas, with me as cocounsel. The twenty-six attorneys general selected former U.S. solicitor general Paul Clement as their counsel. This meant we got to file two briefs rather than one in the court of appeals, and each advocate brought his own distinctive style to the case.
As it happened, as acting solicitor general, Paul Clement had been my opponent in the Supreme Court when I argued the Raich case. Back then he had defended the power of Congress to prohibit my clients from growing marijuana for themselves. Now, as my cocounsel rather than my adversary, he would contend that even the Raich case did not go so far as to authorize Congress to mandate economic activity.
To the chagrin of the ACA’s supporters and most law professors, the Eleventh Circuit handed the government another defeat. Its two-to-one decision was authored by Judge Frank Hull, who, despite the misleading name, is a woman. Judge Hull, a Clinton nominee to the court of appeals, accepted our argument that the unprecedented insurance mandate was unconstitutional (though the panel also held, contrary to Judge Vinson, that it could be severed from the entire act).
The stage was now set for what would turn out to be a historic three days of oral argument in the Supreme Court beginning on Monday, March 26, 2012. (Supreme Court arguments, in even the most momentous of cases, normally last just sixty minutes.) Although you are never supposed to draw too many inferences from the tenor of oral argument, the first day seemed to go well for the challengers. But it was on Tuesday that the crucial issue of the constitutionality of the insurance mandate was to be argued.
Extra chairs had been added in the aisle next to the benches in the courtroom to help accommodate the intense demand for seating. Taking in the scene, I saw senators, congressmen, cabinet secretaries, and other prominent personalities being escorted to their seats. Even some of the justices’ spouses were in attendance.
As the time for argument drew closer, the press filed into their box to the left of the justices’ bench and started to crane their necks to identify personages in the audience for their stories. Reporters elbowed each other while pointing to and sharing the names of the dignitaries they spotted.
As the clock hand over the bench neared 10 a.m. and the lawyers and spectators grew silent, I was supremely grateful that it was Paul Clement and Mike Carvin who would be arguing the case and not me. After experiencing the pressure of the oral argument in Raich, never for a moment did I wish for that task. When veteran litigator and solicitor general Donald Verrilli stood to address the justices, he literally choked on a sip of water at the beginning of his argument.
Like everyone else in the courtroom, I was more interested in the justices’ questions than the advocates’ answers. That day, one question by Justice Anthony Kennedy jumped out as overwhelmingly significant:
I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?
This question was identical to a point I had made repeatedly in my many speeches, briefs, and articles.
Kennedy went on to say: “Here the government is saying that the federal government has a duty to tell the individual citizen that [he] must act, and that is different from what we have [upheld] in previous cases.” That mandating conduct was “unprecedented” and, therefore, distinguishable from previous Supreme Court decisions was what I suggested in my Arena blog post, and it became the centerpiece of our Heritage Foundation paper.
In the old 1930s movies, when a big story breaks, reporters are shown running to a bank of telephone booths to file their stories. Had reporters been allowed to exit the courtroom during the argument—and if we still had phone booths—that is what would have happened next. On that day, however, as I left the courtroom and made my way to the row of television cameras for some prearranged interviews, I passed one reporter after another breathlessly relating to their viewers how it now looked like the challengers might well prevail. And they were right.
With the health care challenge, not one but two issues were on the table. The first was the survival of the Affordable Care Act, which in my view is an egregious public policy. The second was whether the Supreme Court would accept the expansive reading of congressional power that its supporters offered in its defense, which in my view threatened our constitutional scheme of limited and enumerated federal power. In the health care case, though we lost on the policy question, we won on the constitutional one. In short, the case was about saving the country from Obamacare and saving the Constitution for the country.
Before the decision, I figured it was all or nothing. If we lost on Obamacare, it would mean the government’s (and law professors’) reading of the Commerce and Necessary and Proper clauses would prevail. If we won, it would be because our contrasting theories had been affirmed by the Court.
As it happened, although we did not succeed in invalidating the ACA, our view of the Commerce and Necessary and Proper clauses was affirmed by five justices. And the reasons advanced by the government, by most law professors, and by the four liberal justices in Justice Ruth Bader Ginsburg’s concurring opinion for upholding the ACA were rejected.
Indeed, with respect to constitutional law, the case has put us ahead of where we were before the ACA. Five justices of the Supreme Court have now definitively ruled that the Commerce Clause, the Necessary and Proper Clause, and spending power have limits; that the mandate to purchase private health insurance, as well as the threat to withhold Medicaid funding unless states agree to expand their coverage, exceeded these limits; and that the Court will enforce these limits. This was huge.
On the Commerce Clause, Chief Justice John G. Roberts Jr. and four dissenting justices accepted all of our side’s arguments about why the insurance mandate exceeded Congress’s power. “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” Roberts wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”7
Roberts adopted this view for the precise reason we advanced: granting Congress this power would gravely limit the liberties of the people. As he put it: “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the government’s theory—empower Congress to make those decisions for him.”8
Regarding the Necessary and Proper Clause, supporters of the health care overhaul had invoked the power of Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers,” seeing it as a constitutional carte blanche to adopt any means to facilitate the regulation of insurance companies that did not violate an express constitutional prohibition. Roberts squarely rejected this argument: “Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.”9
Tellingly, the chief justice soundly rejected the reasoning that, for two years, had been offered by the government and academic defenders of the insurance mandate:
Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem. To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.10
He then continued:
People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.
That is not the country the Framers of our Constitution envisioned. . . . Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.11
For these reasons, the Court held that economic mandates are unconstitutional under both the Commerce and Necessary and Proper clauses.
As for the spending power, while the Court has previously invalidated statutes that exceeded the Commerce Clause, not since the New Deal had it rejected a law for exceeding the spending power of Congress—until NFIB v. Sebelius. The Court invalidated the part of the Affordable Care Act that empowered the U.S. Department of Health and Human Services to coerce the states by withholding Medicaid funding for existing programs unless the states accepted new coverage requirements.12
When the case was finally decided, against all odds five justices had completely accepted our claim that an individual insurance mandate was beyond the enumerated powers of Congress to impose on the people. All of this represented a fundamental departure from how most law professors viewed constitutional law before this decision. Under the holding of NFIB, economic mandates are unconstitutional.
To the dismay of the challengers, however, after deciding for us on the Constitution, the chief justice provided the fifth vote to uphold Obamacare, over the vehement joint dissent of Justices Kennedy, Scalia, Thomas, and Alito. Although we had saved the enumerated powers scheme of the Constitution for the country when these four justices and the chief justice accepted all our constitutional arguments, somehow we had lost our fight to save the country from Obamacare. How was this possible?
At its core, this book is about the answer to this question.
On June 28, the last day of the Supreme Court’s term, another full courtroom greeted the justices as they assumed the bench at 10 a.m. This time I wasn’t there. I had committed myself to interviews and writing some instant reaction pieces, so I monitored the proceedings on my computer from my office at Georgetown Law, not far from the Supreme Court. As it happened it was a good thing I did.
When Chief Justice Roberts read the first part of his opinion, which I summarized above, most everyone in the courtroom assumed that the challengers had defeated Obamacare. Indeed, both CNN and Fox News issued news flashes that the challenge had succeeded, and my thrilled mother texted me congratulations. But sitting in my office reading the report of the written opinions on SCOTUSBlog, I knew better.
To explain how we lost, I need to return to the immediate aftermath of the oral argument in March. The tenor of the oral argument shocked supporters of the law and law professors, and their shock soon turned to anger. The Supreme Court normally votes in its cases in conference on Friday of the week of argument. On the Monday following the argument—and presumably after the justices had voted on our challenge—President Barack Obama made the following statement from the Rose Garden:
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
And I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this—this court will recognize that and not take that step.13
Fed by the president’s statement and those of others, defenders of Obamacare’s constitutionality launched an angry public campaign against the conservative justices.14 They derided as political and partisan any decision that would hold Congress to its limited powers. And some trained their fire specifically on Chief Justice Roberts.
In a New Republic column, Jeffrey Rosen praised “the commitment of more traditional conservatives . . . to judicial restraint,” and challenged the chief justice to remain true to his judicial conservatism: “This, then, is John Roberts’s moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace.” By voting to strike down Obamacare, Rosen said, the chief justice would “be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance.”15
Rosen’s theme was taken up by Senator Patrick Leahy, who was then the chair of the Senate Judiciary Committee. Leahy admonished the chief justice to “do the right thing.” In a Senate floor speech, the senator claimed to “trust that he will be a chief justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch.” He then observed that “[t]he conservative activism of recent years has not been good for the court. Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.”16
We will never know if these and many other sometimes vituperative attacks on the more conservative justices had an effect on the outcome of the case. But it was reliably reported that the chief justice had voted in conference to hold that the individual insurance mandate was unconstitutional, and that sometime after these attacks commenced, he switched his vote.17 But instead of upholding the constitutionality of the individual insurance mandate as the four progressive justices would have, he changed the statute so it was no longer an unconstitutional mandate. By so doing, he could uphold the rest of the law. And he did this in the name of judicial restraint that requires deference to Congress.
Although the chief justice admitted that the law was most naturally read as a mandate to buy insurance—it was, after all, called a “requirement” that was enforced by a “penalty”—he then proceeded to adopt what he called a “saving construction” that rewrote the law in the name of judicial “deference” to Congress. “The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution,” he wrote. “Granting the Act the full measure of deference owed to federal statutes, it can be so read.”18
To accomplish this, he needed to eliminate the mandate that he agreed was beyond the power of Congress to enact. Gone was what the statute called a “requirement” enforced by a “penalty.” In its place, he said the statute could be read to provide an option either to buy insurance or to pay a small and “noncoercive” tax if one did not.19 By finding this noncoercive tax, rather than a purchase requirement, to be constitutional, he was able to uphold the rest of the Affordable Care Act.
In this way, the chief justice followed the advice of President Obama. Although the chief justice insisted that “there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits,” by twisting the meaning of the law, he could defer to Congress.20 As he put it, “[i]t is not our job to protect the people from the consequences of their political choices.”21 By this circuitous route, Obamacare was saved.
As President Obama had accurately observed, for years “conservative commentators” had claimed that “the biggest problem on the bench was judicial activism or a lack of judicial restraint.” Chief Justice Roberts was selected by President George W. Bush precisely because of his professed commitment to judicial restraint, which during his confirmation hearings he called “judicial minimalism.”
The chickens of the conservative commitment to judicial restraint had thus come home to roost. Ironically, conservatives had inherited their commitment to judicial restraint from the progressive supporters of the New Deal, who had opposed the Supreme Court holding Congress to its enumerated powers. Just as judicial restraint was invoked by progressive justices to expand the scope of the federal government by Roosevelt appointees, now a conservative chief justice invoked judicial restraint to uphold a federal takeover of the health care system.
The tragedy of the Obamacare challenge teaches that it is not enough to debate what the Constitution means, which is the subject of my previous book, Restoring the Lost Constitution. As we have seen, that only takes us half the way. As Chief Justice Roberts’s ruling shows, we also need to debate the proper role of judges in enforcing that meaning.
In this book, I explain why judicial deference to what President Obama called the will of a “majority of a democratically elected Congress” is in fact misguided and inconsistent with the most basic premises of the Constitution.
To understand why this is wrong, we must return to the very first concept upon which the Constitution is based: “We the People.”
Americans today are divided politically, ideologically, and culturally. Some of us live in blue states and watch CNN; others live in red states and watch Fox News. Some Americans want more government, others less. We engage in passionate debate over myriad issues: gun control, health care, same-sex marriage, immigration, the war on terrorism—the list of issues that divide Americans goes on and on. Our divisions are reflected in print, on the airways, and increasingly online. Battles are fought in city councils, state legislatures, and in the halls of Congress.
Of course, as we saw with Obamacare, the Supreme Court, too, is divided. This is because Americans are not just divided about politics, culture, and ideology. Americans are also divided about the Constitution itself. Every open seat on the Supreme Court is an occasion for intense partisan conflict. Confirmation hearings for Supreme Court justices become Kabuki theater in which our deep political conflicts are transformed into competing visions of the Constitution.
In this book, I call these divergent visions the “Democratic Constitution” and the “Republican Constitution,” but I don’t intend these labels to be partisan. There are political conservatives who hew to some aspects of the Democratic Constitution and some progressives who adopt aspects of the Republican one. Many people flit between conceptions depending on which happens to conform to the results they like. I chose the terms democratic and republican constitutions because both terms have deep roots in our constitutional history, and neither is pejorative. I dislike arguments by labels and both these labels today have a positive connotation.
At its core, this debate is about the meaning of the first three words of the Constitution: “We the People.” Those who favor the Democratic Constitution view We the People as a group, as a body, as a collective entity. Those who favor the Republican Constitution view We the People as individuals. This choice of visions has enormous real-world consequences.
Each vision of We the People yields a different conception of what is called “popular sovereignty.” Those who adhere to the Democratic Constitution hold a different conception of popular sovereignty than those who adhere to the Republican Constitution. So let me begin by explaining the role that popular sovereignty plays in our thinking about the Constitution.
The concept of popular sovereignty was first developed in the United States at the time of our founding. Back then it was a first principle of political theory that sovereignty—or the right to rule—must reside somewhere in any polity. While the ultimate sovereign was thought to be God, who ruled the world, on earth, monarchs claimed to be the sovereign rulers of their own people, ruling by delegation from God, or what was called divine right.
When the Americans had their revolution and rejected the rule of the English king, political theory required them to say who was sovereign in their new polity. The answer they gave was that “the people themselves” were the ultimate sovereign. But this raised at least as many questions as it solved. If “sovereignty” was an answer to the question of who has the right to rule, in what sense do the people rule? This seems like a contradiction. We need government to rule the people, and yet the people themselves are supposed to be the ultimate ruler. What sense does this make?
What I am calling the Democratic Constitution is one way to address the problem of how the sovereign people can be said to rule. If sovereignty is conceived as residing in the people collectively, then popular sovereignty means rule by the people as a body. And rule by the people as a body then means rule according to the “will of the people.”
Of course, it makes perfect sense to talk about the will or desires of a sovereign monarch. But in what sense does a body of individual persons have a collective will or desire? No one who makes claims about the will of the people claims that there must be, or ever is, a unanimous consensus of everyone to some particular desire. In practice, the collective “will of the people” must rest on the desires of a majority or supermajority of the people. It does not—because it cannot—rest on the desires of everyone.
Therefore, in operation, a conception of popular sovereignty based on rule according to the will of the people means rule according to the will of a majority of the people. So the Democratic Constitution:
• starts with a collective vision of We the People;
• which leads to a conception of popular sovereignty based on the “will of the people” as a group;
• which, in practice, can only be the will of the majority.
For this side of our constitutional divide, then, a legitimate constitution is a Democratic Constitution. It sets up institutional mechanisms by which the desires of a majority of the people can be expressed.
If a well-constructed Democratic Constitution, based on a collective conception of popular sovereignty, is one that allows the will of the majority to prevail, then a number of important implications follow.
First and foremost, any principle or practice that gets in the way of the will of the majority or majority rule is presumptively illegitimate and requires special justification.
Under a Democratic Constitution, the only individual rights that are legally enforceable are a product of majoritarian will—whether the will of majorities in the legislature who create ordinary legal rights, or the will of majorities who ratified the Constitution and its amendments and created constitutional rights.
So, under a Democratic Constitution, first comes government and then come rights. First one needs to establish a polity with a legislature to represent the will of the people. And then this legislature will decide which rights, if any, get legal protection and which do not.
A Democratic Constitution is a “living constitution” whose meaning evolves to align with contemporary popular desires, so that today’s majority is not bound by what is called “the dead hand of the past.” The will of yesterday’s majority cannot override the will of the majority today.
Under a Democratic Constitution, unelected judges who are not accountable to the majority present what Alexander Bickel called the “counter-majoritarian difficulty.”22 Judges are not selected to represent the desires of anyone. They are appointed, not elected, and in the federal system they serve for life. To the extent they invalidate popularly enacted laws, these unelected and unaccountable judges are thwarting the will of the people as expressed by their elected representatives.
Because of all this, under a Democratic Constitution, judges are told they should exercise their power of judicial review with “restraint.” They should “defer” to the will of the popularly elected branches by adopting a “presumption of constitutionality” that simply presumes—perhaps irrebuttably—that properly elected legislatures have acted properly when they restrict the liberties of the people. For the people are only restricting themselves, we are told, and how they are to govern themselves is for their democratically selected representatives to decide.
Ultimately, this is how the Obamacare case was decided as it was: a majority of the Supreme Court could assert they were deferring to Congress, the popularly elected and most democratically accountable branch. Who was the unelected Supreme Court to obstruct the will of We the People as manifested by a majority of representatives in Congress? In short, five justices hewed to the vision of a Democratic Constitution.
Today, belief in the correctness of a Democratic Constitution is so pervasive among both progressives and conservatives—and among Democrats and Republicans—that you might be sitting there wondering what other view of the Constitution there could be. Perhaps the most important purpose of this book is simply to identify and describe this other view—what I am calling a Republican Constitution—so that you can recognize it as a distinct vision of the Constitution.
What separates a Republican Constitution from a Democratic Constitution is its conception of “popular sovereignty.” Where a Democratic Constitution views sovereignty as residing in the people collectively or as a group, a Republican Constitution views sovereignty as residing in the people as individuals.
If one views We the People as a collection of individuals, a completely different constitutional picture emerges. Because those in government are merely a small subset of the people who serve as their servants or agents, the “just powers” of these servants must be limited to the purpose for which they are delegated. That purpose is not to reflect the people’s will or desire—which in practice means the will or desires of the majority—but to secure the preexisting rights of We the People, each and every one of us.
Under a Republican Constitution, then, the first duty of government is to equally protect these personal and individual rights from being violated by both domestic and foreign transgressors. The agents of the people must not themselves use their delegated powers to violate the very rights they were empowered to protect. But how may these delegated powers be effectively limited to their proper exercise?
A Republican Constitution views the natural and inalienable rights of these joint and equal sovereign individuals as preceding the formation of governments, so first come rights and then comes government. Indeed, the Declaration of Independence tells us, it is “to secure these rights” that “Governments are instituted among Men.” What are the implications of adopting an individual rather than a collective conception of popular sovereignty?
Under a Republican Constitution, because We the People consists of each and every person, We the People as a whole never govern. Instead, the power to govern must be delegated to some subset of the people. The small subset of individuals who are empowered to govern the rest of us are not to be confused with the people themselves, but are considered to be the servants of the people. The people are the principals or masters and those in government merely their agents. As agents they are to govern on behalf of the people and subject to their ultimate control.
Under a Republican Constitution, to ensure that these servants remain within their just powers, this lawmaking power must itself be limited by law. The Republican Constitution, then, provides the law that governs those who govern us and it is put in writing so it can be enforced against the servants of the people, each of whom must swear a solemn oath to obey “this Constitution.” Those servants or agents who swear the oath to “this Constitution”—the written one—can no more change the “law that governs them” than we can change the speed limits that are imposed on us.
In short, under a Republican Constitution, the meaning of the written Constitution must remain the same until it is properly changed—which is another way of saying that the written Constitution must be interpreted according to its original meaning until it is properly amended.
Under a Republican Constitution, a completely different picture of judges emerges. Like legislators, judges too are servants of the people, and their primary duty is to adhere to the law of the Constitution above any statute enacted by Congress or by the states. Judges are given lifetime tenure precisely so they may hold democratic legislatures within the proper scope of their just powers and by so doing protect the individual “rights . . . retained by the people”—and “the privileges or immunities of citizens”—from being denied, disparaged, or abridged by their servants in the legislature.
But what are these individual rights that are retained by the people? The idea of individual popular sovereignty helps us to better understand just what rights and powers, privileges and immunities are retained by the sovereign people as individuals. Indeed, under a Republican Constitution, the rights and powers retained by the people closely resemble those enjoyed by sovereign monarchs.
• Just as sovereign monarchs claim jurisdiction over their territories and possessions, sovereign individual citizens have jurisdiction over their private property.
• Just as one monarch may not interfere within the territorial jurisdiction of other monarchs, no citizen may interfere with the person and property of any other.
• Just as monarchs may use force to defend their people and territory from the aggression of other monarchs, so too may individual citizens use force in defense of themselves and their possessions.
• Just as monarchs may consensually alter their legal relations with other monarchs by entering into treaties, so too may individual citizens freely alter their legal relations with their “fellow citizens and joint sovereigns” by entering into contracts with each other.
Of course, a Republican Constitution is established, in part, so that these liberties of the individual may be regulated by law. But the proper purpose of such regulation must be limited to the equal protection of the rights of each and every person. Any law that does not have this as its purpose is beyond the just powers of a republican legislature to impose on the citizenry. In short, when the liberty of a fellow citizen and joint sovereign is restricted, judges as agents of these citizens have a judicial duty to critically assess whether the legislature has improperly exceeded its just powers to infringe upon the sovereignty of We the People.
It is important to recognize that the Democratic and Republican views of popular sovereignty and We the People are ultimately incompatible. Adopting one of these worldviews will have implications that will differ in all these ways from adopting the other. However, because both worldviews are deeply rooted in our constitutional history and traditions, holders of each have tried to incorporate the most appealing features of the other.
Those who hold a democratic or collective vision of popular sovereignty based on majoritarian rule have strained to justify the protection of some personal or individual rights—but not so many as to thwart unduly the will of the majority. And those who hold a republican or individualist vision of popular sovereignty will acknowledge that popular elections provide a vital constraint on the exercise of power by the agents or servants of the people.
So, in practice, a constitution that hews to one of these visions may still accommodate some significant element of the other, albeit in a subordinate way. To identify the nature of a particular constitution, then, the key is to distinguish the features that are the exceptions from those that reflect the more fundamental worldview that animates that constitution. Which worldview underlies and animates the Constitution of the United States? In this book, I explain how our Constitution is a Republican Constitution.
In 2008, Sanford Levinson published his provocative book, Our Undemocratic Constitution: Where the Constitution Goes Wrong.23 In reviewing it, I freely admitted that our Constitution was undemocratic in the way he suggests, but went on to say that these features are what made the Constitution exceptional and good. True, they were “undemocratic,” but that was because they were “republican.”24 Thinking about Levinson’s book provoked me to write this one and to title it Our Republican Constitution.
Were the founders really against democracy? You bet. They blamed the problems in the states under the Articles of Confederation on an excess of democracy. For example, Edmund Randolph, the first attorney general of the United States, under George Washington, observed that “the general object was to provide a cure for the evils under which the U.S. laboured.”25 And that “in tracing these evils to their origin every man had found it in the turbulence and follies of democracy.”26 Others said the same thing.
Elbridge Gerry from Massachusetts stated: “The evils we experience flow from the excess of democracy.” Roger Sherman, of Connecticut, contended that the people “immediately should have as little to do as may be about the Government.”27 Gouverneur Morris, delegate from Pennsylvania, noted that “[e]very man of observation had seen in the democratic branches of the State Legislatures, precipitation—in Congress changeableness, in every department excesses against personal liberty private property & personal safety.”28 Even those who remained more amenable to democracy, like George Mason of Virginia, admitted that “we had been too democratic” in forming state governments.29
And yet, having deliberately devised what Professor Levinson calls “our undemocratic constitution,” these framers all insisted that it was still a republican constitution. As historian Richard Beeman reminds us, the “vast majority of the Founding Fathers were republicans, not democrats.”30 Nearly all “harbored keen misgivings about the desirability of democracy as a guiding principle for the new government.”31 Yet, at the close of the Philadelphia convention, when Benjamin Franklin was asked what form of government the convention had devised, he famously replied, “A republic, if you can keep it.” So, if the founders rejected an excess of democracy in favor of a new, undemocratic form of government they called “republican,” then I believe it is fair for me to call our undemocratic Constitution “republican.”
The fact that our Republican Constitution has democratic elements does not make it what I am calling a Democratic Constitution. The bare fact that a particular form of government has elected legislators or an elected president does not by itself tell us whether it is a democracy or a republic. Representative government is consistent with both conceptions of popular sovereignty. Representative government can be favored as a practical way to “re-present” the will of the sovereign people, when direct democracy is infeasible. Alternatively, such a form of government can be viewed as a popular “check” on the servants of the people who are tasked with governing on their behalf.
Therefore, to decide whether a particular form of government is democratic or republican, we need to look to other features to see whether “first come rights and then comes government,” or whether the rights of the people are considered to be the result of democratic deliberation. To the extent that the individual rights retained by the people are recognized and effectively protected from the will of majorities, that polity is a true republic.
I do not claim that everyone who used the term republican at the founding or thereafter necessarily meant the Republican Constitution as I am defining it. The more democratic governments of the states under the Articles of Confederation were called “republican,” too. But when that system failed, the founders opted for a new approach. For this reason, the meaning of republican necessarily changed in 1787, when this new “undemocratic” form of government went public.
Ultimately what matters, however, is not the labels we use to describe these differing views of popular sovereignty, or what they were called in the past. Nor does it really matter which exact view was held by those who wrote the Constitution. What matters is the type of constitution they wrote and whether we today believe it to be a good enough constitution to follow.
In this book, I will examine the text of the Constitution to show that it was republican in nature, and I will then argue that our Republican Constitution is a good constitution, the meaning of which should remain the same until it is properly changed by amendment. But it is not enough to get that meaning right. Judges must then protect our Republican Constitution by enforcing the limitations on power that it imposes on the other branches, and on state legislatures.