Many Americans complain when the courts allow Congress and federal officials to violate the Constitution. Why does that happen?
There are several reasons, but hereโs one that few people appreciate: Often when judges are called on to interpret a word or phrase in the Constitution, they must render their decision without knowing what the word or phrase really means.
This sounds strange: After all, judges usually decide points of constitutional law only after lawyers for both sides have argued and briefed the case. In addition, the Supreme Court and other appeals courts often have the advantage of briefs submitted byย amici curiaeย (Latin for โfriends of the courtโ).ย Amici curiaeย are outside parties with an interest in the case and something useful to say about it.
So how can a court not learn what a disputed constitutional provision means?
Some Background
Despite what you may have heard, the Constitution isnโt written in ordinary English. Itโs written mostly in ordinaryย 18th-century English. Itโs also spiced with words and phrases derived from 18th-century law. (Some examples of technical legal terms in the Constitution are โhabeas corpus,โ โnecessary and proper,โ and โPrivileges and Immunities.โ) Uncovering the exact meaning and scope of a word or phrase requires historical, legal, and language skills. It also requires honesty: The researcher has to follow the evidence wherever it leads, not seek or use only sources that promote his own views.
As you might imagine, most practicing attorneys donโt have the necessary skills for impartial academic research. And thatโs not their job anyway. Their job is to represent their clients.
In exploring issues of constitutional law, the heavy lifting is supposed to be done by legal academicsโlaw professors. Some law professors have the necessary skills and mindset. But most do not. The majority are people who earned high grades at a selective law school, survived maybe two to three years of legal grunt work, and then were hired to teach what they never practiced and to do research for which they have no qualifications. Most are to the left of center politically, and many of those would rather serve their political prejudices than undertake the work and training required for objective and accurate research.
By way of illustration: When I was on a law faculty, a leftist colleague of mine told me quite candidly that he never begins a research project without knowing in advance what his conclusion will be.
Yet judges rely on these biased, untrained people for information on how to interpret our Constitution.
Example: The 2012 Obamacare Case
Hereโs an example of what Iโm describing: In 2012, the Supreme Court heard a constitutional challenge to the so-called Affordable Care ActโObamacare. Most people know that Obamacare survived that challenge (pdf). What they donโt realize is that there were actuallyย fourย major issues in that case, and the challengers to Obamacare won three of them. The court ruled as follows:
- The part of Obamacare ordering the states to expand their Medicaid programs was unconstitutional. The vote was 7โ2.
- Obamacareโs mandate that everyone buy government-approved health insurance was not a constitutional use of the Commerce Clause (Article I, Section 8, Clause 3). The vote was 5โ4.
- Obamacareโs mandate that everyone buy government-approved health insurance was not a constitutional use of the Necessary and Proper Clause (Article I, Section 8, Clause 18). The vote was 5โ4.
- However, the penalty for not buying government-approved health insurance was valid as an โindirect taxโ under the Taxation Clause (Article I, Section 8, Clause 1). This vote also was 5โ4, with Chief Justice John Roberts switching sides.
Many disappointed citizens blamed Roberts. They accused him of timidity or of trying to please the D.C. โswamp.โ But they overlooked the fact that Roberts voted on their side on all of the first three issues.
In my view, a central reason the challengers won on the first three issues was that the court had accurate information about them. A critical reason the challengers lost on the fourth issue was that the court did not have accurate information about it.
The first issueโhow far Congress can command the statesโwas governed by modern case precedents. These are cases constitutional lawyers and judges understand very well.
As for the second issue, the court had reliable information on the scope of the Commerce Clause, because of three recent, and very thorough, research studiesโincluding one I had conducted (pdf). The conclusions from these studies made it clear that forcing people to buy insurance was not โregulating Commerce.โ
The court also had reliable data on the third issue, involving the Necessary and Proper Clause. Shortly before the Obamacare case was heard, Cambridge University Press issued aย bookย on the background and meaning of the Necessary and Proper Clause. The court had this book in its library, and someย amici curiaeย brought it to the justicesโ attention. It didnโt take much effort to find out that forcing people to buy insurance was not โnecessary and proper,โ as the Constitution uses the phrase.
But the court didย notย have reliable information on the Constitutionโs terms โtaxโ and โindirect tax.โ Most of the research articles then available were typical of law professorsโ constitutional workโshallow and biased. Also, few people took the tax issue seriously, so the subject was not well briefed or argued.
Thus, on the meaning of โtaxโ and โindirect tax,โ the justices had to wing it. Only later did we learn definitively that they had reached the wrong decision (pdf).
America needs more honest and qualified constitutional scholars. But they wonโt be hired by law schools at โwokeโ universities. Donors should stop contributing to those universities and instead support schools and policy centers that respect the Constitution and promote its true meaning. If enough donors do so, then bad โscholarsโ will be fired, good ones will be hired, and the courts will have the information they need to make correct constitutional decisions.
The essayย first appearedย in the Aug. 19, 2022ย Epoch Times.
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