Popular Constitutionalism, Originalism, and the Individual Mandate

March 23, 2011
Guest Post

By Adam Winkler, a constitutional law professor at UCLA School of Law. This post is part of an ACSblog symposium marking the one-year anniversary of the Affordable Care Act.  
The public debate over the constitutionality of the Affordable Care Act's minimum insurance requirement has an Alice in Wonderland feel about it. In a reversal of their usual positions, conservatives have embraced popular constitutionalism and liberals are the ones touting original meaning.

Opponents of the new national health care law were quick to recognize that the debate over the constitutionality of the minimum insurance provision would be fought not only in court but also in the street. While supporters of the law were brushing aside the legal arguments against the mandate, secure in the view that decades of case law put the reform on a firm doctrinal foundation, opponents immediately took to the blogs, newspaper editorials, and talk radio programs across the nation. Their argument was simple: Congress can't regulate "inactivity" and if it could there would be no more limits to federal power under the Constitution.

Notably absent from their arguments was the traditional basis for conservative constitutional critique: originalism. After three decades of insisting that the only way to properly interpret the Constitution was to rely on the original public meaning, conservatives all of sudden were making what can only be described as a constitutional policy argument. They didn't argue that the Framers thought the Constitution prevented Congress from regulating "inactivity." Rather, opponents of health care reform insisted that allowing Congress to reach inactivity was a bad idea whose acceptance would lead to a parade of horribles. Congress is going to make you buy an American car! Or, perish the thought, make you eat broccoli!

Of course the parade of horribles was just like any other parade: a show, a performance that expresses a worldview that unites a self-defined community. Congress is not about to make people buy American cars or eat broccoli, any more than state and local governments are going to do so. State and local governments aren't limited to enumerated powers, so they clearly have the power, even under the constitutional views of healthcare reform's opponents, to require their residents to buy broccoli. The fact that no state or local government has ever done so suggests that the threat is nothing more than a horror movie monster-meant to scare you as you watch the show, but no need to lock your bedroom door at night.

It's the liberal supporters of health care reform who've made the originalist argument. The Founding generation, the argument goes, did envision Congress to have the power to make individuals buy something in the private marketplace when public necessity demanded it. In 1792, Congress enacted the Uniform Militia Act, which required every free white male to outfit himself with a military-style firearm and appropriate ammunition. If you didn't own a gun, or only had one designed for shooting birds and squirrels, you had to go out and obtain one of suitable size for military service. In the absence of a standing army, the citizen militia had to be properly armed.

Where did Congress gain the power to adopt this individual mandate? Not necessarily through the Constitution's Militia Clauses, which only say that Congress has the power "to provide for organizing, arming, and disciplining, the Militia." In other words, the Militia Clauses give Congress the ability to "provide" for the "arming" of militias, something which could have been done with what in the health care debate we call the public option. Congress could, as several colonial governments did, purchase firearms, store them in public arsenals, and distribute them when necessary. Instead, however, Congress put the onus on individuals to go out and supply themselves. The obvious textual basis for such a mandate is the Necessary and Proper Clause. In its broad, comprehensive regulation of the militias, Congress adopted an individual mandate to ensure that its larger goals were not undermined.

Liberals have also argued that health care reform is precisely the type of regulation of interstate commerce envisioned by the Founding generation, which sought to give Congress the authority to regulate on economic issues that directly impact the nation but that are logistically impossible for individual states to manage effectively.

Perhaps this role reversal should not come as any surprise. The truth is that most self-proclaimed originalists are nothing of the sort. Like Justice Scalia, they reject the original meaning of the Fourteenth Amendment, which was clearly to allow racially segregated public schools and bans on interracial marriage, because such results could not satisfy popular understandings of equal protection today. And liberals who for years have denied the value of originalism still believe that consideration of the historical understanding of the text is one of several legitimate and worthwhile "modes" of constitutional hermeneutics.

Every constitutional interpreter uses text, history, policy, and precedent to make persuasive arguments that appeal to We, the People. Popular understandings of the Constitution do matter, as does original meaning. It's about time that both constitutional conservatives and constitutional liberals own up to the fact that we all use the same tools.