The constitutionality of bad ideas

There’s a common tendency to insist that things you disagree with politically must also be unconstitutional. You can see examples of in the health care debate (from both sides). The conservatives keep insisting that the reform efforts are unconstitutional because they obligate people to purchase insurance.

There’s a couple weird elements to this. First, the insistence that health care is not a constitutional right. Well, sure. But so what? I don’t think anyone arguing for passage of the health care bill is saying it needs to pass in order to bring us in line with the Constitution. If it were something constitutionally protected, the Court should have stepped in long ago to mandate it. While I do think one could make a case for health care as a basic civil right, there just isn’t anything in the text of the document or its interpretation that suggests this would be compelling to anything close to a majority.

Second, and more importantly, is the disconnect between theoretically conceivable arguments and the actual possibility for movement.

One thing we can learn from the debate over legal positivism is that legal decisions inevitably involve an element of personal judgment. In any case worth discussing potentially credible arguments can be made for directly contrary positions. The resolution of these hard cases is never going to adhere perfectly to some abstract form of the law. Even the most emphatic proponents of a comprehensive legal idealism (say, Ronald Dworkin) acknowledge that the actual material creation of law is at best an approximation.

So the ability to make a constitutional argument, on its own, means very little. In this case, given the existing (and recently re-affirmed) precedent, there is simply no way that a majority will overturn Raich and a whole host of other supplemental decisions that outline a pretty expansive interpretation of the Commerce Clause. Frankly, even in the old Morrison world of limited Commerce power, it would have been a tremendously hard sell to explain health care as falling outside the reach of Congress.

So yes, you could advance an argument about the theoretical unconstitutionality of health care reform. It has zero chance of being affirmed as a practical matter, though. And it’s particularly silly to cherry-pick legal positions which hold no weight. If you truly believe that the expansive Commerce Clause should be rolled back, then make that case. But as a political matter, don’t expect anything.

Similarly, after the various abortion compromises, word came from the left that they found the deals to be unconstitutional. Again, you could make a case that the current legal doctrine on abortion is wrong, that the Equal Protection clause ought to guarantee safe and easy access for all women. You could argue that Harris v. McRae was wrongly decided. And so on. I personally find all those arguments to be persuasive and have been pushing that angle for a long time. But the chances that the current court or anything like it would strike down these provisions as unconstitutional on these grounds is virtually nil.

In both of these cases, it’s not that the intellectual arguments are worthless. Legal doctrine is shaped by people discussing it, arguing, and pushing their positions. But that is a long process, and one underwritten to a tremendous extent by straightforward politics. If you truly believe that the Court ought to protect reproductive rights, the single most important thing you can do is get pro-choice people elected.

To that end, I understand that using ‘constitutionality’ as a talking point is useful because of the institutional culture of our society – where the constitution is often a club wielded to support positions, rather than something to be considered abstractly. So I’m not ‘against’ making these sort of arguments. I recognize their political utility even if I find them to be intellectually a bit lacking.

However, the real silly season starts on things like the debate over the constitutionality of the filibuster. Tom Geoghegan makes the case, and Kevin Drum supports it. The primary argument seems to be that the framers included some explicit supermajoritarian elements. Presumably this is meant to imply that other elements should be disallowed. But…that makes no sense. Like, none at all. There’s lots of stuff the constitution doesn’t explicitly outline about institutional structure; the presumption is that its…up to the branches to sort that stuff out amongst themselves.

As in, the process for voting is a constitutional question, but the lead-up to voting is not.

What’s more, the implicit political argument embedded in this (“the founders would have hated the filibuster!”) is also pretty bizarre. While they never explicitly affirm the filibuster, there is plenty of evidence in The Federalist Papers that the purpose of the Senate was to slow things down, to gum up the works. It was composed on a state-by-state basis precisely in order to make it counter-majoritarian. It was filled by appointment rather than election for the same reason. It was meant to be the deliberative, restraining element of the Congress. Read Federalist #62. This stuff is stated pretty explicitly.

Scott Lemieux elaborates:

I’m also puzzled by the attempt — which will be familiar to people who read stuff analyzing the legitimacy of judicial review — to claim that there’s something unusual or constitutionally deviant about a counter-majoritarian rule within the American political system. Pretty much everything about the Senate was constructed to be counter-majoritarian. This makes it a very bad political institution, but it makes it hard to claim that individual instances of counter-majoritarian rules explicitly permitted by the text are implicitly unconstitutional.

In short: the case against the filibuster is part of a larger argument that the framers got it wrong. Or, at least, that the world of the 21st century is so different from the 18th that we should be actively striving to reduce all the counter-majoritarian elements of the Senate that we can. Not because they’re in violation of the Senate’s constitutional history but because that history fails in the face of a fast-paced world in need of action.

It’s quite possible for things to be constitutional and ALSO bad ideas. In fact, the recognition of this fact is precisely why we have a tri-part system. If the basic structure of the law was sufficient to cover all matters, we wouldn’t need Congress.