Strengthening Constitutional Self-Government

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Turnabout is Fair Play

The Living constitution vs. the New Deal:

What Tribe forgets is that the constitution is a living document. The constitution's meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe's interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.

It's time for Professor Tribe to stop clinging to his horse and buggy constitution, and get with the times.

Categories > Courts

Discussions - 1 Comment

This Op-ed got on my nerves.

"Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?"

Absolutely not, congress already regulates it, what is in doubt is the ability of congress to regulate interstate non-commerce, or what folks decide not to purchase, so the argument is on the individual mandate.

"But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. "

Notice the equivocation here: "healthy or risk-prone individuals" could lead to unacceptably high premiums for the remaining pool. Actually if risk prone individuals opt out the premiums should decrease.

"For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability."

Healthy and risk prone individuals, hard workers and lazy ones, folks that smoke a pack of day and folks who run 5k's everyone must participate to the extent of their economic ability! "To each according to his needs from each according to his abilities."-Karl Marx.

In case the tea party wasn't about to have a big enough fit, he went and grabed the third rail. "In this regard, the health care law is little different from Social Security." (I suppose Social Security is legal which is his point, but it is hardly solvent...1.4 trillion budget deficit?)

"The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out."

Well the states that joined the suit disagree about financial soundness of both Social Security and the health care bill. If it turns out to be "difficult, if not impossible" to maintain the financial soundness of Social Security when it doesn't let folks opt out... maybe the court can take a look at some of the facts that gave rise to the finding. I mean....

Lets say I have a bank receipt from 1982, showing a ballance in my checking account of one million dollars. I walk into the bank with a check made out for 1 million and ask for it to be cashed...Without knowing banking law I still figure that the teller would be negligent if he cashed the check without doing some due dilligence.

I don't care much for the term "living constitution", but I think it is important to recognize that holdings are based in both law and fact. The law is the same, until it is changed by congressional bodies, but the facts are always different, so the holdings are different. But the holdings are used as law.

In the example of the teller, past examples of fraud will have resulted in the banks changing policies to combat fraud and graft. For the bank teller the policy, or holding is law(contract, labor law, setting forward company policy). Sorry I can't cash X amount without I.D., or indicia X,Y,Z.

In a tremendous number of circumstances "holdings" work as law. But "holdings" are living, because they are law+fact. Constitutional Law is full of "holdings", so Constitutional Law is Living even if the constitution isn't.

In Proffesor Tribes example he cites the holding in Lee, but neglects the facts. The case involves the Amish and the extent of the free excercise clause, which itself is somewhat dependent on how plausible/central the court finds the religious conviction. In Wisconsin v. Yoder for example the court allowed the infamous "Amish exception" to compulsory education.

That is the court held both that the farm work of the Amish and the Amish way of life was directly threatened by a secular public education, which would prepare them for a life distinct from Amish traditions. The court did not find the argument as persuasive in Lee, so the balance in Lee went to the state and its argument that allowing people to opt out of social security would be too great a burden.

I think the general argument in Lee could be applied to the difficulties and costs of running an administrative agency like the department of HHS.

What used to be Constitutional Law(Yoder, Lee), has moved out of the courts and into the administrative agencies because these are more knowledgeable about the costs of the exceptions. See controversy over 700+ exceptions.

In fact the way professor Tribe words it, you would think the Court in Lee had really dug deeply into the costs of exceptions. It is probably more fair to say that they were worried about a backlog of borderline free excercise claims and disrupting the clear prescedent on taxation "There is no principled way for purposes of this case to distinguish between general taxes and those imposed under the Social Security Act." Lee v. U.S. 455 U.S. 252 ( was not to open pandora's box.)

Setting asside the "penalty" vs. "tax" debate, the holding in Lee would only have to be overturned if it was not so easily distinguishable and controverted by actions.

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