Yesterday’s big topic at the Court was over whether there’s some kind of “limiting principle” that would allow the government to enforce a mandate but would also draw lines against other government exercises of power that presumably would infringe on liberty.
But this is the wrong debate.
This whole discussion is rooted in a Tea Party or libertarian version of the Constitution that’s hogwash. The Constitution of the United States was not written to limit government, in either a historical or theoretical sense. That’s not what it was primarily about. The Constitution was written to create government, and to create government power.
It is true, of course, that Lockean ideas did at least partially influence the Framers. So it’s fair to say that they did care about limits to government. But they were also influenced by republican ideas that suggested a vigorous role for government — and by the practical problems that the incredibly limited government was causing, at least as they saw it.
The solution to the question of how to limit government power even while creating and encouraging it, as James Madison explained in Federalist 51, was separated institutions sharing powers. Government would be limited and tyranny prevented because the House, the Senate, the president, the courts, and the states would all compete with each other for influence, thus, Madison hoped, preventing any of them from dominating the rest and, with it, the nation. But what “tyranny” consists of is mostly not defined by Madison or the other Framers.
What the Framers developed was a democracy, and it’s in the democratic process that we decide what government should and shouldn’t do — and can and can’t do. Of course this takes interpretation of the Constitution — but that, too, is resolved by the democratic process.
What does all of this say about the “limiting principle”?
The group who needs a limiting principle, it seems to me, are the Court’s conservatives. At least, they need one if they want to knock out the health law without knocking out the entire New Deal. Important components of the New Deal — such as the minimum wage — are justified by current interpretation of the Commerce Clause. If the court decides to eliminate the health law by returning to the pre-New Deal understanding of the Commerce Clause, then the constitutional justification for all sorts of laws and programs would be threatened.
In asking for a limiting principle, Conservatives say they are demanding justification for why the law would not invite broccoli tyranny. But what they’re really looking for is a principle to knock down the health law without looking as if they’re undermining the rationale for much of the New Deal.
What liberals should be saying is: We don’t need a limiting principle, beyond the structure of the government of the United States. Liberals should demand that we put our trust in the limiting principle Madison came up with: we’ll avoid tyranny because our political system makes it awfully hard for anyone to tyrannize anyone else. We don’t need to be concerned about “the government” forcing everyone to eat broccoli because the government is the House and the Senate and the president and the courts and the rest of it, and they aren’t going to manage to agree on something obscure or crazy or silly most of the time because they have a really hard time even managing to agree on simple and popular stuff. And if they do pass something crazy, then you can have an election, toss them out, and get it repealed.
The Court conservatives cannot knock out the mandate, and retain the New Deal, and be consistent. They can have only any two of those at once. The consistency part of it may be a problem for them if they care about their reputation with lawyers, or with those who care about principles and standards and such. But they’re free under the constitution to act in what’s basically a partisan fashion — we tend to like our judges and justices to be all pure and nonpolitical, but they’re under no obligation to do that. If they want some principled way to keep health reform without tossing plenty more? They’re mostly out of luck.