Kevin Drum has an argument that I agree with in part, but strongly disagree with in another part. He argues that if there needs to be a limiting test on Congressional power, this is obviously something that the Court can establish. I still want to push back on the idea that this is all that important here, given that I think existing precedent is more than sufficient to establish that the ACA fits within Congressional power and the simple solution is just to say ‘it’s Constitutional given existing precedent. TTYL.’ But if the luminaries on the Court are so worried about this, and A) are really going to strike down the mandate based on a slippery slope fear and B) are genuinely open to persuasion, then it’s not that hard a problem to solve. They can just come up with the principle themselves. So that much I agree with. Where I disagree is here:
[I]t’s still not the government’s job to articulate a limiting principle. It’s the court’s job. That’s what they do. They write opinions that — in theory, anyway — provide guidance to lower courts about how to apply the law. Supreme court opinions are chockablock with three-prong tests, significant nexus tests, balancing tests, and a million other kinds of tests. As long as Kennedy or Roberts or Breyer or Kagan or any of the others can come up with something that gets five votes, then we have our limiting principle. There’s no reason it has to come from the Obama administration. In fact, all things considered, it’s probably best if it doesn’t. The justices will all feel a whole lot smarter and a whole lot more decisive if they do it themselves.
I think it’s a very bad idea to defer all constitutional interpretation to the courts. The activity of the entire government is, in a deep sense, about constitutional interpretation, whether they admit to it or not. Why pass these laws? Why enforce them in this manner? I have no desire for legislatures and executives who simply do anything they can with no considered judgment about where it fits into the larger constitutional map of basic principles and values. That is a recipe for a stale and non-responsive Constitution. Congress very much should think about the Constitutional basis for the laws that they pass, not just in terms of limits on their power but also in terms of their obligations.
The Constitution is not a Medieval sacred text, that can only be interpreted by a priestly caste in robes. It is the basic structure of our whole political system, something that is at stake in all kinds of political argument. When we defer to the Court as the only agent capable of using the Constitution to introduce change into the world, we abandon a core element of political participation.
I’m not someone to valorize democracy for the sake of democracy. But I very much think that constitutional interpretation is improved substantially when it is a genuine conversation among many actors in society, rather than the sole province of the Court. They do play an important procedural role, but in terms of the substance of interpretation, the more the merrier.
Anyways, if I had more time I would post about this in more detail since this is increasingly integral to my dissertation and therefore something that I ponder quite a lot. But I’ve got tons of things on the agenda, so it’ll have to wait.
Agreed. Dumb argument.