Rob Natelson explains in this essay, which points of some of Seidman’s major historical errors about the Founding Era and constitutional history.

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund’s expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund’s view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here’s what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. “[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes….” The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at 210-11, quoting Sarrls v. Commonwealth, 83 Ky. 327, 332-33 (1885) (interpreting physician exception in statutory ban on liquor transfers).

In The Evolving Police Power: Some Observations for a New Century (27 Hastings Const’l L.Q. 511 (Spring 2000)), Glenn Reynolds and examined the trend in some courts towards judicial recognition of an issue on which Freund and Tiedman agreed: however one defines the boundaries of the police power, it is not infinite, and there are some personal zones into which it cannot reach.

This morning on 850 KOA’s Mike Rosen Show, two of our senior fellows joined Mike in studio to discuss the lawsuit against our Taxpayers Bill of Rights (TABOR). Officially called Kerr v. Hickenlooper in federal court, the suit attempts to kill TABOR in Colorado because it allegedly violates our United States’ Constitution’s guarantee clause. The guarantee clause, ehem, guarantees us a “republican” form of government. No one expected the lawsuit to go very far and indeed, it came as quite a surprise when one of our federal judges allowed the suit to proceed.

Now we defenders of the TABOR amendment are left scratching our heads wondering how this could be, and curiously, whether there is any merit to the case. That’s where senior fellows Penn Pfiffner of our Fiscal Policy Center and Rob Natelson of Constitution Studies come in. In their 30 minute segment on the Mike Rosen program, they explain the background of the case, why it matters, and most importantly, why it’s total bunk (and deserves to be thrown out).

Friday night means the Independence Institute’s public affairs television show Devil’s Advocate on Colorado Public Television 12. First, Independence Institute constitutional scholar Rob Natelson sits down with host Jon Caldara to discuss his amicus brief on the Necessary and Proper Clause of the U.S. Constitution in the recent Obamacare Supreme Court case and how that clause affected the rulings. Then Colorado Springs Gazette editorial page editor Wayne Laugesen swings by to talk about the Waldo Canyon wildfire. That’s tonight at 8:30PM on Colorado Public Television 12.

The Supreme Court Obamcare decisions and the first Amendment are topics of recently published works by Independence Institute writers.

In the Denver Post, Health Care Policy Center director Linda Gorman lays out some straightforward, market-based health care reforms should Congress attempt to replace and repeal Obamacare.  Writes Linda:

Advocates of Obamacare claim that unless we let the government (mis)manage even more of the health care system, there will no health safety net.

To the contrary, with patient-centered reforms, we can reduce ordinary health care costs for everyone, make insurance for extraordinary costs accessible and affordable, and provide an effective safety net for the poor.

Whole thing here.

In the Great Falls (Montana) Tribune, Rob Natelson writes on the importance of First Amendment freedoms when politicians, from both sides of the aisle, go gunning for media outlets they don’t like, using Great Britain as an example.  Writes Rob:

At a minimum, mainstream reporters have to mute what they write about sitting office holders so they can maintain access to sources. Less scrupulous reporters amplify messages promoted by favored politicos and dig up (or manufacture) dirt against political opponents.

Whole thing here.

That’s the title of a new article by Gary Lawson and me, in Boston University’s American Journal of Law and Medicine, in a symposium issue on the PPACA. Except that unlike Alice, the PPACA neither becomes a Queen, nor wakes up to return to reality. Written before the oral argument, the article provides an overview of some of the main constitutional and linguistic topics at play in the PPACA cases.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

For over the two years, the very intelligent and clever professors at Balkinization have been doing a great job up trying to come up with legal arguments in support of the health control law. Even people who were not persuaded by the arguments can see how they have contributed to the debate. The first item I wrote on the health control law was back on March 22, 2010, responding to an article by Jack Balkin in the New England Journal of Medicine regarding the tax power. (Incidentally, this may make me the second VC writer–very distantly second after Randy himself–to state in writing that the health control law is unconstitutional under modern law, not just under original meaning. )

My Independence Institute colleague Rob Natelson (U. Montana law school) first wrote on the constitutionality of the health control law on Jan. 23, 2010, responding to a Los Angeles Times essay by Akhil Amar, who also writes for Balkinization. (Making Natelson the 1st full-time law professor to write something on Barnett’s side of the issue.)

I think that the VC and Balkinization have jointly helped to elevate the constitutional analysis by the courts and by the public, especially when VC and Bk have engaged and addressed each other’s arguments. Both VC and Bk kept right on going last week, with plenty of arguments for the Court made during the period between the end of oral argument on Wednesday and the Court’s conference on Friday.

In the health control law debate, VC and Balkinization have each had one outlier. At VC, our outlier was Orin Kerr, who remains unconvinced by the arguments developed by Randy et al. Orin’s public questions and challenges have helped spur the health control skeptics to refine their arguments, and to state them more precisely and clearly.

Balkinization has a different kind of outlier. Andy Koppelman has spent two years penning variations of his thesis: “Everyone who doesn’t agree with me is stupid.”

As noted below by Randy, Koppleman’s latest essay explores the implications of his certitude that “the silliness of the constitutional arguments against the mandate is apparent to any competent lawyer who assesses them in good faith.” Because every competent lawyer knows that Koppelman is right, how could anyone, including Supreme Court Justices, purport to disagree?

There could be only two possible explanations for such a frivolous opinion: (1) a naked assertion of raw power by politicized right-wing justices contemptuous of democratic processes, or (2) a sort of mass hallucination induced by the inane rantings produced by the echo chamber of the right-wing blogosphere.

Thus, says Koppelman, everyone, including lower federal courts, should “nullify” a Supreme Court decision holding the health control law unconstitutional.

I’ll leave it up to the readers to decide whether the Supreme Court saying that Congress can’t force people to buy overpriced products from the Big Insurance oligopoly merits the same sort of response that Kentucky offered to a congressional statute which (as actually enforced) outlawed criticism of the President, or which Wisconsin offered to a federal statute purporting to conscript Wisconsin citizens into enforcement of the federal Fugitive Slave Act of 1850.

But I will say this, from an organizational behavior perspective. An organization whose task involves persuasive communications can sometimes be strengthened if there is one person in the organization who can thoughtfully say “Here’s why I think the rest of you may be wrong, and here are what I see to be the weaknesses in your argument.” In contrast, an organization will not improve its persuasive effectiveness if the organization pays any attention to a fanatical member who insists, “No, the people on the other side aren’t just wrong. They MAD I tell you! MAD! They live in an echo chamber, and can’t even consider contrary ideas. Isn’t that obviously CRAZY!!?”

For my own exchanges with Professor Koppelman, see Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011), and Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), both of which were co-authored BU’s Gary Lawson. A shorter version of the Lawson/Kopel thesis on the Necessary and Proper clause is available at The Incidental Unconstitutionality of the Individual Mandate, Legal Workshop. Feb. 6, 2012.

[Epilogue: April Fool's. On me. Larry Solum of Legal Theory occasionally posts abstracts of "articles" by famous professors which  are actually Solum-written parodies that take the professor's approach and push it just one more, somewhat plausible, step into absurdity. In real life, Koppelman does accuse critics of the health control law of acting "in the spirit of a saboteur in wartime,” and he did characterize the Lawson/Kopel argument for obeying the original meaning of the Necessary and Proper clause, as expounded in McCulloch, as "insane." But he never called for nullifying a Supreme Court decision; and while he has always said that there are no non-"silly" arguments against the health control law, he has never posited mass insanity as an alternative explanation to his theory that the only way for the health control law to be ruled unconstitutional would be political bias by the judges. And congratulations to Larry Solum, who is never insane, always brilliant, and sometimes silly.]

George Mason University law professor, Volokh Conspiracy blogger, and colleague of our constitutional scholar Dave Kopel, Professor Ilya Somin joined in the fight against Obamacare and its individual mandate. Professor Somin authored this amicus brief against the mandate, which, like our individual mandate amicus, focuses a lot on the necessary and proper clause.

Here is Professor Somin discussing his case against the mandate and prognosticating on the future of Obamacare with Reason.tv:

The religious and conservatives among us might not want to hear this, but I think it’s important to point out. Our Constitutional scholar Rob Natelson just wrote on the contraceptives and Catholic Church controversy. Many are making a First Amendment case against the Obamacare mandate forcing the church to provide products and services they find immoral. After all, the First Amendment protects religious freedom. However, Rob disagrees with this particular defense. He writes,

Does the mandate forcing Catholic hospitals to offer abortifacients and contraception violate the First Amendment? The surprising answer is: Probably not.

Read Rob’s constitutional arguments on his blog. You might be surprised to see that not all religious refuge can be taken in the First Amendment. A big thanks goes out to Rob for being true to objective constitutional scholarship – even if it means not giving an answer people want to hear.