Where do we go from here?
Suppose we do have a better feel for it than the Chief Justice. What is the way to proceed, to invalidate the SCOTUS ruling on ObamaCare? This is an important question, and there are drawbacks with either of the most likely methods.
One is for the Supreme Court to rule differently on a case trying similar issues in the future. This method would have the virtue of leaving the judiciary to correct itself. But it would also be likely to involve issues that are not perfectly identical or even analogous, which would make application of the ruling uncertain. If the judiciary behaves the way it usually has, correcting the ObamaCare ruling for any useful purpose would be a lengthy process requiring a number of separate rulings on related matters over time.
We should not despair of a different Supreme Court ruling differently on the same matter in the future. Supreme Courts throwing out precedent – e.g., on the interpretation of the 9th and 10th amendments – is how we got to where we are today. It can happen. But it’s a big philosophical question whether that’s the best way to correct the ObamaCare ruling. The judiciary has not, over time, been nearly as unified and single-trending as today’s shallow education leads Americans to think, but there has nevertheless been a certain coherence to the body of jurisprudence, even where many Americans continued to disagree with specific rulings. A spectacular reversal might be popular, but what would it say about the integrity of our idea of law?
I’m not enamored of that possibility, but there are issues with a constitutional amendment as well. As big an undertaking as it is, I see an amendment as the quickest and most effective way to clarify that Congress does not have the power to levy a purchase mandate of the kind embedded in ObamaCare. Probably the biggest drawback with an amendment is the precedent it would set for adding such clarifications to the Constitution. How many would we end up needing, to fend off all the federal mandates that may creep up on us? A prohibition on a purchase mandate seems very general, but there’s no telling how many permutations of a sort-of-almost-not-quite purchase mandate Congress could come up with, to get around the amendment – and the people would still have to funnel money by mandate to Congress’s chosen goods or services.
That said, an amendment may be the way to go. I am quite sympathetic with those who don’t want to just keep adding to the Constitution, but we have added very little to it in the much-changed political environment of the last 80 years. The Constitution was written in a world in which many of the things people want to do with government today were unimaginable. Those things have now been imagined, and it may in fact be time to update the Constitution. That’s what we did with the 13th, 14th, and 15th amendments: update the Constitution to reflect our national posture on emerging developments. The 14th amendment may have been abused in the 20th century, but it was good law, in my view, clarifying the minimum that it meant to apply the law equally in a land of former slaves. The Civil War amendments were added because big things had changed.
Big things have certainly changed in the last 80 years, and the chief result of legislation and jurisprudence has been ignoring or finessing the Constitution’s limits on government. My preference for updating the Constitution involves affirming limits on government – in particular, the federal government – in the context of modern ideas about using it for absolutely everything.
I am not sure that a single amendment, or two or three, would accomplish everything that is needed. I’ve been thinking about a private citizens’ “constitutional convention” for a number of years now: a convention to approve and propose a small set of amendments to the US Constitution. The idea would be to get legislators and presidential candidates to endorse the proposal, and a critical mass of them to push it in Congress, and perhaps prompt another official constitutional convention, which would adopt them. (I believe others are thinking about this as well. Please chime in if I haven’t mentioned your effort.)