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Conservative Restraint, Libertarian Activism

The Supreme Court’s decision upholding Obamacare revealed a vast difference of opinion over the nature and meaning of the Constitution. Not between the left and the right—those disagreements are nothing new and utterly familiar—but among conservatives themselves.

A large majority of conservatives deplored the ruling, arguing that the president’s dreaded health care law remained an unconstitutional usurpation of power. Chief Justice John Roberts was denounced as a traitor to conservatism and the Constitution. But Roberts was not without conservative defenders.

A significant minority on the right, disproportionately including the legal conservatives from whose ranks George W. Bush plucked Roberts in the first place, critiqued the critics. Without exactly agreeing with the ruling, Matthew J. Franck of National Review’s Bench Memos blog asserted, “I am more convinced than ever that Roberts has a fully plausible case that can be defended on principled grounds.” The libertarian lawyer Doug Mataconis went a step further, arguing, “those on the right attacking [Roberts] now are revealing quite clearly that the are motivated not by an honest criticism of the legal reason the Chief Justice used in his opinion, but because all along it’s only been the result, not the law, that matters to them.”

The political journalist Jay Cost opined in the Weekly Standard that Roberts’ limitations on the commerce clause and the Medicaid expansion were “two enormous triumphs in the century-long war over the principle that the Constitution forbids unlimited federal power.” Veteran conservative columnists George Will and Charles Krauthammer concurred. These voices got a major endorsement when Randy Barnett—the libertarian law professor who helped frame legal arguments against Obamacare that wouldn’t have required junking decades of commerce clause precedent—took to the pages of theWashington Post to proclaim the decision a loss on health care but a win for the Constitution.

It’s a debate that goes beyond any particular legal strategy or even the merits of the Affordable Care Act case. Conservatives have long had their own vocabulary to describe their devotion to the Constitution. They purport to be “textualists,” “originalists,” or “strict constructionists” seeking to discover “original intent.” They dislike judges who “legislate from the bench” rather than strictly interpret the law, and their presidential candidates promise to appoint jurists in the mold of Rehnquist, Scalia, Thomas, Alito, and (until recently) Roberts to replace them.

Liberals frequently argue that all these words don’t really mean anything. That isn’t exactly true, but their meaning is less precise than conservatives often suppose—and conservatives themselves disagree about the actual content of these concepts. Consider the concepts of judicial activism and judicial restraint.

Forerunners of the modern American conservative movement had no qualms about using the Supreme Court to invalidate much of FDR’s New Deal economic agenda, much like the legal campaign against Obamacare. But contemporary conservatives cut their teeth on arguments that undemocratic judges were tossing aside duly enacted laws in favor of their own policy preferences. The right wanted to impeach Earl Warren because his Court was overturning state laws and social customs, not because it had made constitutional peace with the New Deal. By the Reagan administration, attorneys committed to this view began to secure judgeships and employment in the Justice Department, articulating a legal case for judicial restraint.

Steven Teles, author of The Rise of the Conservative Legal Movement, described Roberts as “a Reagan Justice Department-era conservative.” In a post at the Washington Monthly, Teles argued:


That era of conservatives were pissed off at the activist judiciary that brought us school busing and other forms of what they took to be social engineering … and an inversion of American federalism. But that generation of conservatives were basically followers of Justice Frankfurter, and they tended to argue that it was 1960s/70s judicial liberalism that they were against, which they claimed was a kind of Lochnerism of the left. That kind of judicial conservatism—which was really Robert Bork’s style of conservatism, and the origin of his version of originalism—is in very stark contrast to legal libertarianism that inspired the case against the ACA.

In contrast with many other strict constitutionalists on the right, Bork—one of the leading lights of the conservative legal movement whose failed Supreme Court nomination was one of the great lost causes of the Reagan era—actually believed the Tenth Amendment was unenforceable. “If he was right,” wrote the columnist Joe Sobran, “then the whole Constitution was in vain from the start.”

Sobran eventually abandoned his constitutionalism and died a “reluctant” philosophical anarchist. But his basic view has been held by many on the right who invoke the Constitution, from Barry Goldwater’s Conscience of a Conservative to the Tea Party today: the founding document created a federal government with a few defined enumerated powers, delegated by the states and the people through the ratification process.

Constitutional conservatives of one stripe might be hesitant to strike down an act of the legislature, searching Roberts-like for some way to read the statue that might comport with the Constitution. But the variety more concerned about restraining the federal government than judicial restraint would look at Article I, Section 8 in conjunction with the Ninth and Tenth Amendments, concluding that something like the Affordable Care Act couldn’t possibly be constitutional whether the individual mandate is a tax or a banana.

Four out of five Republican appointees to the Supreme Court came closer to the latter view than Roberts’ alleged judicial restraint, so perhaps this disconnect is fading. But not all strict constructionists are created equal.

W. James Antle III is associate editor of The American Spectator and a contributing editor of The American ConservativeFollow him on Twitter [1].

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10 Comments To "Conservative Restraint, Libertarian Activism"

#1 Comment By cackcon On July 13, 2012 @ 1:45 pm

It’s not so much an issue of judicial restraint versus the lack thereof as it is a question of federalism.

If you look at the “conservative wing” of the bench, those justices practice a great deal more restraint when it comes to striking down state laws as unconstitutional. The “liberal wing” has no such concern for state sovereignty. And in these cases, Justice Kennedy is usually the tiebreaker because he is fairly libertarian whether it the state or federal government is involved.

The ACA case, however, presented a question of federal sovereignty, and the conservative wing plus Justice Kennedy tends to side with the states (and the citizens of the states) in such cases. Again, the liberal wing is essentially pro-federal and less willing to question the powers of Washington.

What was striking was not that Chief Justice Roberts exercised “restraint” per se, but that the act of restraint in this situation afforded Congress a high level of deference.

No doubt most of those heaping criticism of the Chief Justice did just want a particular result (as did most supporters of the ACA, who don’t really care HOW they won). But there’s a fairly good argument to make that his opinion missed the mark (such as, why can you tax inaction if you cannot otherwise compel the action?).

I’ve been digesting the opinion for a while and still lean a bit toward the side of the critics. That said, it wasn’t exactly the breathtaking departure from precedent that some claim.

On the other hand, there’s the concurring/dissenting opinion of Justice Ginsburg and the rest of the liberal wing, which is perhaps the sorriest excuse for an opinion I’ve read since Casey. It’s really too bad no one’s decrying the fact that four justices really believe such nonsensical garbage.

The consolation when a federal law is upheld is that you can change the law. This is not the case when Justice Kennedy and the liberal wing strike down a perfectly reasonable state law based on emanations from penumbras.

#2 Comment By tbraton On July 13, 2012 @ 7:55 pm

“No doubt most of those heaping criticism of the Chief Justice did just want a particular result (as did most supporters of the ACA, who don’t really care HOW they won). But there’s a fairly good argument to make that his opinion missed the mark (such as, why can you tax inaction if you cannot otherwise compel the action?).”

On the day the ACA decision was handed down by the Supreme Court, Mr. Antle posted another blog. I responded that day and raised the exact same point you are raising.
[2] As I said before, the point that mystifies me is that, if the main point of disagreement between Roberts and the other four conservatives was how much of the ACA should be struck down, why Roberts just didn’t strike down the individual mandate as beyond Congress’ authority to regulate under the interstate commerce clause but uphold the rest of the ACA. After all, he did agree to strike down the Medicaid provision. It would not have been that far a stretch of the Constitution to rule that Congress cannot accomplish by the taxing power what it can’t do under other provisions of the Constitution. After all, if the “tax” of the ACA accomplished its goal 100%, that means that no taxes would be raised. Thus, to characterize the penalty as a “tax” appears to be a stretch on the part of Roberts, especially when what is the target of the “tax” is inactivity on the part of U.S. citizens.

#3 Comment By Mario On July 13, 2012 @ 8:19 pm

What conservatives fail to observe, is that Roberst secured teh liberal wing backing aginst the Federal Government extensive use of the commerce clause, which should have been the main concern to begin with.
If congress want to create and entitlment program, they can do so and pay for it with taxes.
Ironically, this decision actually opened the doors for a single payer system.

#4 Comment By William Dalton On July 13, 2012 @ 10:54 pm

A number of us who came through law school in the 70’s, laboring under the tutelage of professors who believed the expanding powers of the President, Congress and Supreme Court could not be challenged by the states, joined the Republican Party and participated in the Reagan Revolution because we believed both that Congress had overreached its powers under Article I, and that the Supreme Court had overreached itself in giving expansive meaning to the Fourteenth Amendment, and entered into government and the legal system intent upon rolling back both anomalies in a Federal system bequeathed us by the Founders. The two demands for “restraint”, to be exercised by the Supreme Court, upon the Congress, upon the President, and upon itself, are not inconsistent.

#5 Comment By Connecticut Farmer On July 14, 2012 @ 9:33 am

Roberts, as the tiebreaker, was in a no-win position. Had he sided with the conservatives, he and the conservatives would have been charged by liberals with “legislating from the bench”–doing the very thing that conservatives were supposed to be against in the first place. On the other hand, by siding with the liberals he seemingly gives the stamp of approval to the Federal government running roughshod over the Ninth and Tenth Amendments and thus incurring the wrath of conservatives.

In this case I (reluctantly–VERY reluctantly) have to side with Mssrs. Will, Krauthammer etal. Roberts’ first responsibility is to the Constitution and the concept of judicial restraint. In this case he was left with no choice but to split the baby as it were. We conservatives should at least take solace in the fact that he upheld the Commerce Clause while striking down the proposed expansion of Medicaid. I’ll not get into the distinction between a “fine” and a “tax” which I believe everyone knows is a distinction without a difference (which is why his logic troubles me). However, in declaring the assessment a “tax”, Roberts threw the ball back to the Obama crowd who, up to the time of the decision, denied that it was a tax.

In essence, the decision mandates that to repeal this latest attempt at social engineering we will have to go back to that branch of government where it originated in the first place–the Congress. I think that Mr. Madison would have approved.

#6 Comment By Jim Evans On July 14, 2012 @ 2:59 pm

The power to tax is the power to regulate.

To be able to exercise force or compulsion, is the power to regulate.

Behind the ability to tax is compulsion, i.e., don’t pay your taxes and the government can fine and/or put the individual in prison.

Are not fines or prison a form of penalty?

Those that wanted to make lemonade out of lemons (at least Will and Krauthammer) put a political 🙂 on the decision, but those of a legal mind understand, “the power to tax is the power to regulate,” and Roberts’ decision in essence gave the federal government unlimited power.

All you need to do to understand the decision was wrong on constitutional grounds is to ask these questions:

Did the Founding Fathers frame the U. S. Constitution with the idea the federal government was to have unlimted powers?

Or did the Founding Fathers frame the U. S. Constitution with a mind to restrain the power of the centralized national government by enumerating its powers and limiting it to those enumerated powers?

#7 Comment By Ben, Okla. City On July 14, 2012 @ 5:33 pm

Can anyone cite a Supreme Court decision that relies on the 10th Amendment? I have read that there has never been one.

#8 Comment By tz On July 15, 2012 @ 1:25 am

Conneticut Farmer phrases “this latest attempt at social engineering “.
Is not any and all government an exercise in social engineering?
Am I mistaken when I read into your use of the term to be a bit of a sneering right wing reference to our government taking actions to create space for a middle class, and to establish some sort of floor beneath everyone?

#9 Comment By KevinW On July 15, 2012 @ 7:27 pm

I read one of Krauthammer’s columns after the decision, and he called Roberts’ argument “flimsy.” It looked to me like Krauthammer disagreed completely with Roberts’ argument, saying that the individual mandate with a tax penalty for noncompliance is clearly meant to compel commerce. He also described Roberts’ decision as a “figleaf.” It didn’t seem to me he was trying to put lipstick on a pig, he was just calling it a pig.

#10 Comment By cackcon On July 16, 2012 @ 9:19 am

@Ben Okla. City

There’s no case citing the 10th Amendment, so far as I know. But I think my fellow conservatives miss the point sometimes in relying upon the 10th. It is, after all, little more than a restatement of state sovereignty in the positive sense. This principle is already established in the negative sense–i.e., the enumeration of federal powers is itself a limitation of those powers.

The problem is, if the federal courts recognize almost no limitation from the commerce clause or other clauses, then federal power is almost unlimited. Therefore, the power that would be “left” to the states under the 10th Amendment shrinks as a consequence. In other words, the fact that the states have the leftover power does not help in determining what that power is.

So yes, the 10th Amendment contains a great philosophical point, and one that should not be forgotten. It’s just not as weighty when it comes to resolving legal questions.