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Home > Blog > All > George Will

George Will

  • April 24, 2012

    So-Called ‘Originalism’ No Help in Determining Cruel and Unusual Punishment

    by Jeremy Leaming

    From time to time, perhaps once a decade, syndicated columnist George Will can say or write something that does more than trumpet right-wing talking points. A recent piece on the Supreme Court’s consideration of whether sentencing juveniles to prison with no chance of parole violates the Constitution is an example.

    Writing about cases involving juveniles who were sentenced to life in prison for crimes they committed when they were 14, Will says the judges involved had “no discretion to impose any other” sentences, and that such mandatory sentencing bars courts from taking into consideration our “society’s sense of cruelty.” This kind of thinking, however, as Will notes can undercut so-called originalism, a method of interpreting the Constitution favored by conservative judges. Toward the end of his column, Will writes that “even the ‘originalist’ Scalia, although disposed to construe the Constitution’s terms as they were understood when ratified, would today proscribe some late-18th-century punishments, such as public lashing and branding.”

    Instead of obsessively trying to figure out what the Constitution’s framers thought when they crafted the document, competent judges today consider societal developments, which are informed by science. In fact, Will writes that the high court “has accommodated what science teaches.” He cites high court opinions from 2005 and 2010 that took into account studies on the differences between youngsters and adults in limiting the use of the death penalty in cases involving juveniles.

    In 2005’s Roper v. Simmons, the justices relied in part on the differences between children and adults in concluding that the death penalty would not be imposed for crimes committed by those under 18, and later in Graham v. Florida that life sentences without parole would not be dealt to juveniles convicted of non-homicide crimes.

    Will argues that the social science should be relied on by the high court in finding that teenagers committed of violent crimes, including homicide, should not be imprisoned forever. “Denying juveniles even a chance for parole defeats the penal objective of rehabilitation,” Will writes.

    In a March 13 guest post for ACSblog law professor Kristin Henning also notes that scientific research “on adolescent development bolsters the commonsense understanding that teenagers lack self-control, are vulnerable to environmental pressures, and have fewer life experiences on which to draw in evaluating the consequences of their actions.”

    More
    Tags:
    Originalism, Juvenile justice, Supreme Court, Prison policy/incarceration, Constitutional Interpretation and Change, Criminal Justice, cruel and unusual punishment, Eighth Amendment, George Will, Graham v. Florida, juvenile life sentences, Life Without Parole, Professor Kristin Henning, Roper v. Simmons
  • July 8, 2011

    The Right’s Obsession with the Slippery Slope: Maintaining Health Care Insurance Just the Beginning, Weight Watchers is Next

    by Jeremy Leaming

    First it was broccoli, now it's Weight Watchers.

    The right-wing blogosphere is gushing over George Will’s latest attempt to paint the minimum coverage provision of the Affordable Care Act (ACA), as a wild overreach by the Obama administration. If the government can force individuals to carry health care insurance, surely it can enact a law requiring us to eat healthy or force obese Americans to join Weight Watchers.

    During a recent discussion, “Battle for the Constitution,” on ABCNews’s “This Week,” Will claimed that obesity impacts interstate commerce, and therefore does it not follow that Congress has the constitutional power to require overweight people to join Weight Watchers. Time’s Richard Stengel said he did not know, and Georgetown University professor Eric Dyson said the question is open.

    Their responses didn’t satisfy Will, who kept demanding to know whether Congress can force heavy Americans into Weight Watchers. But Will’s spin on the broccoli law argument did excite the right-wing blogosphere. (Breitbart.TV, “George Will Brilliantly Traps Liberal Panelists With Obamacare Constitutional Challenge.”) Will’s spin is not that new by the way – he has been asking the Weight-Watchers question for some time. See his columns here and here.

    But there are plenty of constitutional law experts who have had no problem quickly trashing outlandish slippery slope arguments, such as Will’s. (Will may fancy himself a constitutional law expert, but he is not. A decent pundit, he may be.)

    Earlier this year before a Senate Judiciary Committee hearing on the “Constitutionality of the Affordable Care Act,” Charles Fried, a Harvard law school professor and former solicitor general under President Reagan and Walter Dellinger, partner at O’Melveny & Meyers and former acting solicitor general under President Clinton, both testified that liberty interests protected pursuant to the Constitution would prohibit the government from mandating that people engage in behavior like purchasing gym memberships or more broccoli, or joining Weight Watchers.

    In his written testimony before the Committee, Dellinger states:

    The minimum coverage provision of the Affordable Care Act tests no limits and approaches no slippery slope. Notwithstanding the improbable hypothetical put forth by those bringing these lawsuits, Congress never has and never would require Americans to exercise or eat certain foods. Were Congress to consider laws of that kind infringing on personal autonomy, the judiciary would have ample tools under the liberty clause of the Fifth Amendment to identify and enforce constitutional limits. What the Affordable Care regulates is not personal autonomy, but commercial transactions.

    Suggestions that sustaining the minimum coverage provision would mean that Congress could mandate the purchase of cars or comparable items are also disingenuous. The provision requiring minimum health insurance cannot be viewed in isolation. It is an integral part of regulating a health care market in which virtually everyone participates. No one can be certain he or she will never receive medical treatment. Health care can involve very expensive medical treatments that are often provided without regard to one’s ability to pay and whose cost for treating the uninsured is often transferred to other Americans. These qualities are found in no other markets.

    Dellinger also took a shot at slippery slope arguments, noting they too are often “slippery.”

    “Where the issue is simply whether something falls within the scope of a subject matter over which Congress is given jurisdiction to legislate, the parade of horribles marches all too easily,” he wrote. “If it is within the scope of regulating commerce to set a minimum wage, one might argue, then Congress could set the minimum wage at $500 an hour. Would that force us to conclude that Congress therefore cannot set any minimum wage at all? Were Congress to legislate the extreme hypotheticals envisioned by those bringing these challenges, there will be ample constitutional doctrines available for the judiciary to use for the imposition of limits.”

    David Orentlicher, a law professor at Indiana University School of Law-Indianapolis and co-director of the Hall Center for Law and Health, also dispatched the slippery slope argument in a recent op-ed for The Indianapolis Star.

    “Today Congress requires us to buy insurance for the good of our health. Tomorrow, Congress might require us to buy broccoli for the good of our health or a General Motors car for the good of our economy,” Orentlicher wrote. “We would begin to slide down the slippery slope of officious government and hit bottom at the ultimate nanny state.

    “Nothing could be further from the truth,” he continued. “It has been seven decades since the Supreme Court recognized the power of Congress to regulate the way we spend our dollars.”

    In those decades, Orentlicher noted, Congress has never adopted such far-fetched mandates, like the one Will says could be coming if the high court upholds the constitutionality of the ACA’s minimum coverage provision. The liberty interests protected by the Constitution have prevented such mandates, and so has the political process. Orentlicher provides a lengthier defense of the minimum coverage provision for the University of Southern California law Review.

    During a panel discussion on the ability of the federal government to address national problems at the 2011 ACS National Convention, Dellinger also blasted right-wingers for bemoaning the minimum coverage provision, especially since they are typically the same bunch that celebrates government efforts to force women to wait lengthy periods for abortions or to listen to tired lectures about alternatives to abortion.

    Dellinger said, “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scriptured lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Tags:
    Commerce clause, Supreme Court, Constitutional Interpretation and Change, ABCNews, ACA, Affordable Care Act, Charles Fried, David Orentlicher, George Will, individual mandate, minimum coverage provision, Walter Dellinger, Weight Watchers
  • December 6, 2010

    Conservative’s Rhetoric Against Health Care Law Drawing Scrutiny; Va. AG on Fast-Tracking Health Care Litigation

    A Texas Supreme Court justice's take on when courts should invalidate legislative acts, is "pertinent" to the litigation over the landmark health care reform law, according to conservative pundit George Will.

    Will hopes that at least one of the lawsuits challenging the law will prevail, and he has helped advance opponents' arguments against the law. Will, like other opponents, believes that the Affordable Care Act's individual coverage provision, set to take effect in 2014, is the key to scuttling the law. Take that provision out, and the entirety of the law collapses, many believe. The provision provides that most Americans must maintain health care insurance starting in 2014 or pay a tax. The opponents of the law, argue that the provision exceeds congressional power and is therefore unconstitutional.

    Will, in a recent column for The Washington Post, asks whether Congress has "seized, by increments, a sweeping police power that enables it to do virtually anything it wants?" The columnist says Texas Supreme Court Justice Don Willett has provided an answer in a recent state court opinion that he hopes federal court judges will emulate. The Texas judge wrote that legislative power is not unlimited. "There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands," Willet wrote.

    The individual coverage provision is far outside Congress' power to regulate commerce or tax and spend, Will continues, so federal judges must strike it down regardless of lawmakers' enactment of the law. Striking down the health care law would not amount to judicial activism, Will writes, but instead would show judges are following their duty to determine whether the law is constituitonal.

    Simon Lazarus, an expert on the health care law litigation, public policy counsel for the National Senior Citizens Law Center and author of an ACS Issue Brief on the constitutionality of the individual coverage provision, took to task several of Will's points.

    Lazarus told ACSblog, "George Will once again reiterates, as he has ad nauseum, health reform opponents' tired ‘inactivity' canard, as if he is unaware of (perhaps he is) that the only decisions on the merits yet to issue from federal judges have flatly rejected that sound-bite and upheld the constitutionality of the health reform law. The one new thing in this otherwise repetitive piece is his discovery of the notion that "engaged" judges are needed to strike down health reform - a new dog-whistle euphemism for the "activist judges" he openly hoped for in earlier iterations."

    Other constitutional law experts argue that it is well within Congress' constitutional powers to regulate the health care insurance market, and that to rule otherwise would ignore longtime federal court precedent.

    In a column for Politico, constitutional law scholar, Erwin Chemerinsky writes, "Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that taken cumulatively have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect.

    Chemerinsky, founding dean of the University of California, Irvine School of Law, continues, "Congress also could justify this [the individual coverage provision] as an exercise of its taxing and spending power. Congress can require the purchase of health insurance and then tax those who do not do so in order to pay their costs to the system. This is similar to Social Security taxes, which everyone pays to cover the costs of Social Security system. Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend the general welfare and has left it to Congress to determine this."

    Virginia Attorney General Ken Cuccinelli, who is leading one of the lawsuits against the health care law, said over the weekend that he is contemplating asking the U.S. Supreme Court to hear the case on an expedited track - essentially cutting the federal appeals court out of the process. According to the Richmond Times-Dispatch, Cuccinelli asserts that "having the case heard directly by the U.S. Supreme Court could save a year or more from the traditional process, which calls for the case to be heard by the 4th U.S. Circuit Court of Appeals in Richmond."

    But University of Virginia law professor A.E. Dick Howard told the newspaper that such a move is "an extraordinary measure, in that it is rarely done."

    Lazarus, in an interview with ACSblog, said, "Even for a politician as eager for media attention as Attorney General Cuccinelli, threatening to by-pass appellate review in the Fourth Circuit is an over-the-top grandstanding stunt. He seems to have forgotten that courts follow procedures prescribed by law for good reason, to decide actual cases and controversies affecting real persons, not just proclaim fiats on the hot political issues of the day. Mr. Cuccinelli seems to have been non-plussed by the reality-check of Judge Moon's November 30 decision rejecting his claims and upholding the health reform law, perhaps here bent on deflecting media attention."

    More
    Tags:
    Supreme Court, Constitutional Interpretation and Change, Don Willett, George Will, individual coverage provision, individual mandate, Ken Cucinelli, Simon Lazarus
  • March 29, 2010

    Conservative Columnist Renews Charge Against Birthright Citizenship

    As pressure builds for comprehensive immigration reform, reform opponents are girding for a fight. Conservative columnist George Will in a column for The Washington Post, renewed a long-time anti-immigrant charge that the parents of undocumented residents are ineligible for U.S. citizenship.

    "If those who wrote and ratified the 14th Amendment had imagined laws restricting immigration -- and had anticipated huge waves of illegal immigration -- is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws?" Will asks. "Surely not."

    This charge was thoroughly assessed and rebutted in "Birthright Citizenship: A Constitutional Guarantee," a May 2009 ACS Issue by Elizabeth Wydra. "Not only do the arguments against birthright citizenship require utter disregard for the express provisions of the Constitution, they encourage us to abandon the precise reasons behind those enactments," wrote Wydra, chief counsel to the Constitutional Accountability Center. "The text, history, and principles of the Citizenship Clause make clear that we should not tinker with the genius of this constitutional design."

    In an ACSblog post discussing her Issue Brief, Wydra explained: 

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    Tags:
    Immigration, Birthright Citizenship, Elizabeth Wydra, Fourteenth Amendment, George Will, immigration reform
  • January 14, 2010

    ACS Issue Brief Author Counters Continuing Attacks on Health Care Mandates

    Conservative pundit George Will argues in a Washington Post column that wobbly conservatives deplore so-called judicial activism, but true conservatives would support a court decision striking down a health care law requiring individuals to purchase coverage.

    In his column for The Post, Will maintains that the supporters of the heath care mandate are inadequately defending the proposed legislation on constitutional grounds. He asserts that if Congress and the executive branch can require people to buy health care coverage, they could also require people to get in shape. Will writes, "Why not the Anti-Couch Potato Act to Make Calisthenics Mandatory and to Impose a $50 Excise tax on Cheeseburgers Because Unhealthy Lifestyles Affect Interstate Commerce?"

    Although Will cites one pundit, the National Journal's Stuart Taylor, as arguing that the Supreme Court would likely uphold the constitutionality of such a mandate, he could have pointed to numerous others, such as constitutional law experts, Erwin Chemerinsky or Robert A. Schapiro. 

    Or he could have cited a recent Issue Brief released by ACS, in which Simon Lazarus, public policy counsel for the National Senior Citizens Law Center (NSCLC), refutes the arguments that Congress has given short-shrift to the Constitution in fashioning its legislation.

    As Lazarus writes:

    Many independent experts, studies, and analyses concur in Congress' judgment that health reform with universal coverage must include a responsibility requirement; without it, not enough individuals will participate in a voluntary system, adverse selection will continue, the government will continue to overpay for care for the uninsured, and overall health reform will be unsustainable.

    He concludes that the individual mandate "is lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.'"

    Lazarus' Issue Brief, "Mandatory Health Insurance: Is it Constitutional?" is available here.

    More
    Tags:
    Supreme Court, Constitutional Interpretation and Change, George Will,