class actions, disabled rights, copyright, attorneys general, online speech, law schools, obesity, New York, mortgages, legal blogs, safety, CPSC, pharmaceuticals, patent trolls, ADA filing mills, international human rights, humor, hate speech, illegal drugs, immigration law, cellphones, international law, real estate, bar associations, Environmental Protection Agency, First Amendment, insurance fraud, slip and fall, smoking bans, emergency medicine, regulation and its reform, dramshop statutes, hotels, web accessibility, United Nations, Alien Tort Claims Act, lobbyists, pools, school discipline, Voting Rights Act, legal services programs


The Enduring Dangers of the Living Constitution

March 30, 2012 8:15 AM

Richard A. Epstein
Laurence A. Tisch Professor of Law, New York University School of Law

In this post, I want to highlight the issue that I ducked the first time around, which deals with the relationship of ObamaCare to the original design of the Constitution. To many this little exercise could be regarded as an exploration into lost causes, but I think that it is instructive because it shows you how subtle permutations in arguments can lead, under the guise of the living constitution, to a massive revision of the basic constitutional structure--for the worse.

To do so, let me take two sentences, one from Gillian Metzger's instructive post on the taxation question, and one from Erwin Chemerinsky on the scope of the Commerce Clause. The common thread that links these together is that the Constitutional charter as now understood gives Congress a broad range of authority over both taxation and regulation that easily legitimates the scope of both the individual mandate and the Medicaid extension. But note the moves that it takes to do this. Thus Professor Metzger says with regrettable correctness that in dealing with the taxing power "there's no constitutional prohibition on forcing the young and healthy to help subsidize the old and infirm." That proposition is surely true, along with its converse, which is that there is no constitutional prohibition in asking the rich, who are elderly, to help subsidize, the poor who are not. Indeed, there is nothing in the current system of constitutional law that prevents multiple redistributive taxes working at cross purposes with each other.

But what does the spending clause actually say. Namely this:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; . . .
The question is how to get from this text to the conventional wisdom that Metzger accurately conveys. It is not possible except by sleight of hand. Obviously, the taxing power was new to the Constitution. The general welfare is mentioned after the repayment of debts and the common defence. These are classic public goods that must be supplied to all if they are supplied to any persons. The basic theory is that government could tax to deal with those issues to overcome a collective action problem. The general welfare is linked to these, and it bound at the end by reference to the words "of the United States," which refers to the entity whose general welfare is at stake. The system of madcap redistribution is the antithesis of a public good, because far from benefiting everyone uniformly to the extent institutions can do so, it authorizes transfer payments that help some and hurt others. The redefinition of general welfare to include transfer payments is of stupendous importance. It expands the definition of a public good a thousand-fold, and opens the door to factional strife in the bargain.

Professor Chemerinsky is equally casual with the original Constitution design. His view of the living Constitution led him to observe that "[t]he framers could not have anticipated a country with 50 million people without health insurance or the enormous costs that imposes on the economy." Actually, they did, after a fashion, because they knew the dangers of any major departure from fundamental principles.

What Chemerinsky fails to ask is why there are 50 million uninsured. It is not a brute or necessary fact of nature. It is in fact a function of the very failed policies that he continues to support. Introduce a system of limited federal powers, and strong protections for economic liberties, and you don't get into the box where state and federal regulations and mandates can close down the voluntary market. And you certainly do get to unsustainable system of government rigged exchanges that are all too likely to increase the number of persons who will be forced to do with no or inferior health care.

Perhaps the living constitution allows this nation to move rapidly in reverse, but the laws of supply and demand are not so malleable. So when the government chooses a system that raises costs to produce and clamps down on their revenues, it is destined to fail. The correct intellectual response is not an apology for ObamaCare, but a sober understanding that the living constitution (which always evolves, alas, in collectivist fashion) is fraught with political and economic risks that will lead to the long-term decline of the United States. Striking down the ACA is a good way in which to reaffirm the founding principles, which by any standard of political wisdom and social welfare beat the living constitution hands down in any head-to-head competition.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.