Archive for the 'Federalist Society' Category

“Health Laws of Every Description”: Obamacare and Original Meaning

Posted by on Feb 04 2011 | Constitutional History, Constitutional Law, Federalist Society, Health Care, Individual Mandate, Necessary and Proper, Originalism, supreme court

(David Kopel)

Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland.

Gibbons is certainly a good foundation for advocates of strong federal powers. As the Supreme Court later wrote in Wickard v. Filburn, Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Indeed, Wickard itself did not purport to go any further than Gibbons had gone. Yet too many people know Gibbons only from expurgated versions in casebooks; thus they rely on some general phrases in Gibbons, and they infer that the commerce power encompasses everything that has interstate effects. Yet reading the full text of Gibbons ends the need to build speculation upon speculation. According to Chief Justice Marshall, the commerce power does not encompass:

that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description….

(Emphasis added.) Of course one may argue that Chief Justice Marshall was wrong, and that it would be better if “health laws of every description” could be enacted by the national government. But that would not be an originalist argument, and it would certainly not an argument for which one could cite Gibbons v. Ogden.

Some advocates of the current health control law also point to McCulloch v. Maryland to bolster their favored interpretation of the Necessary & Proper clause. These interpretations are not consistent with Chief Justice Marshall’s own understanding of what McCulloch said, and what he believed that “necessary and proper” includes. When McCulloch was decided, it came under fierce criticism, and so Chief Justice Marshall penned a series of pseudonmyous newspaper essays defending the decision. (That the essays, like The Federalist, were written pseudonymously makes them no less valuable.) The essays are collected in the book John Marshall’s Defense of McCulloch v. Maryland, published by Stanford University Press in 1969, and edited by Gerald Gunther. Having studied the essays, Professor Gunther wrote in his introduction, “Clearly these essays give cause to be more guarded in invoking McCulloch to support views of congressional power now thought necessary.”

Marshall explicitly agreed with a critic of McCulloch “that the insertion of the words necessary and proper in the last part of the 8th section of the 1st article, did not enlarge powers previously given, but were inserted only through abundant caution.” (Emphasis in original.) In Marshall’s understanding, any power necessarily includes its incidents. At the time of the Founding and the Early Republic, the legal definition of “incidents” was that they are inferior powers, and cannot be equal to or greater than the enumerated power to which they pertain. Regarding incidental powers, wrote Marshall, “Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of the given power.”

In a forthcoming article in Engage (the journal of The Federalist Society’s practice groups), Rob Natelson and I penned a hypothetical opinion on a federal health control law, written entirely in Chief Justice Marshall’s voice. The opinion consists mainly of direct quotes from Marshall. (Rob, who knows the law and legal culture of the Founding Era as well as anyone in the world, is the lead author.)

It would be difficult to make a serious argument that the original meaning of the commerce clause and the necessary & proper clause is broader than Chief Justice Marshall thought them to be. Marshall’s vigorous readings of those clauses were hardly uncontested by other Founders. For example, James Madison criticized the reasoning, although not the result, in McCulloch. (As President, Madison had signed the bill creating the Second Bank of the United States, which he thought to be inconsistent with original meaning, but validated by subsequent practice.)

The current U.S. Supreme Court and the Circuit Courts of Appeal do not always follow original meaning, but to the extent that they do care about it, the PPACA in general and the mandate to purchase congressionally-designed health insurance in particular cannot be considered constitutionally valid under the commerce clause or the necessary & proper clause.


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Advice for law students: Enjoy your University

Posted by on Oct 18 2010 | Academia, Federalist Society, Uncategorized

(David Kopel)

A few weeks ago, I returned to my beloved University of Michigan, for a law school class reunion. This time, I stayed an extra day, in order to speak to law students at a lunchtime event on Monday, organized by the U of M Federalist Society. Michigan Prof. Richard Primus provided some thoughtful commentary on my presentation, and the FedSoc organization was outstanding. Anyway, the extra 36 hours on campus was a great opportunity to walk many miles revisiting the immense Michigan campus, the U of M’s beautiful Arboretum, and Ann Arbor.

The campus visit reminded me of how much of the education I received at the University of Michigan took place outside the Law Quad–even though the quantity and quality of education received inside the Quad were excellent. My start as a journalist during law school was writing theater reviews, and then op-eds for the Michigan Daily.  Unlike some Daily alumni, I’ve never won a Pulitzer Prize, but like all Daily writers, I benefited from the opportunity to work for a solid daily newspaper with a circulation of 18,000.

Other law school friends who got outside the Law Quad also had great experiences. One friend played interscholastic rugby. My 1L roommate found a small church in Ann Arbor, which at the time was holding services in a room at the YMCA. My roommate was a very studious fellow, even by law school standards, but the church drew him towards something more important. After serving as a JAG officer in the Air Force, he became an ordained minister.

Even if the university beyond the law school doesn’t help you discern a vocation or avocation, you’ll still find lots of theater, music, museums (including mini-exhibits in classroom buildings), guest lectures on topics other than law, and so on. Not to mention intramural and spectator sports.

Not every law school enjoys the good fortune of being located on a flagship research university campus with 41,000 students. But if your law school does share a campus with a university, it’s almost certain that there’s something there for you to enjoy. The law school experience can be all-consuming, especially during the first year. If you take the time to explore your university, you’ll give yourself a helpful mental change of pace, and have some fun. And as the Grateful Dead put it in Box of Rain, “Maybe you’ll find direction around some corner where it’s been waiting to meet you.”


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