Visitors to the Newseum in Washington, D.C., read newspaper coverage of… (Jim Lo Scalzo / EPA )
Within minutes of the Supreme Court decision upholding "Obamacare’s" individual mandate as a valid exercise of Congress’ taxing powers, there were rumbles in the blogosphere that conservatives would snatch victory from the jaws of their defeat. Sure, Chief Justice John Roberts’ opinion saved "Obamacare" by choosing from Column B of the government’s justification for the mandate. But (that crafty devil!) he also furthered the long-term conservative project of weakening Congress’ power to regulate the national economy (and arguably un-national, un-economic conduct like racial discrimination at drugstores) under the Commerce Clause.
A New York Times editorial gave voice to these jitters: “The way the decision was framed could make it harder for Congress to pass laws based on the Constitution’s Commerce Clause, which has been at the foundation of some of the most momentous laws and court rulings in American history.”
There is already revisionism about the revisionism, with some commentators arguing that Roberts’ opinion (which wasn’t joined by the other conservatives even though he agreed with them on the Commerce Clause) isn’t all that big an obstacle to future federal legislation. But suppose the jitters are appropriate. There’s a remedy: Amend the Constitution with language that would go something like this:
“Nothing in this Constitution prevents the Congress from legislating solutions to problems that are national in scope.”
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Of course, no such amendment will be adopted, any more than the Constitution will be amended to overturn the much-demonized Citizens United decision in which the court afforded 1st Amendment protection to political spending by corporations. I explained why in a column on this site in 2007:
“Congress and state legislatures don't mind amending the Constitution when it comes to technical or housekeeping matters. Such initiatives have included giving residents of Washington, D.C., a vote in presidential elections (the 23rd Amendment, ratified in 1961), lowering the voting age to 18 (the 26th Amendment, ratified in 1971) and preventing members of Congress from raising their own pay before an election (the 27th Amendment, proposed in 1789 but not ratified until 1992).
“But attitudes shift when it comes to amending other parts of the Constitution — notably the Bill of Rights, but also the post-Civil War 14th Amendment, which says that states may not deny ‘any person ... the equal protection of the laws.’ "
My analysis also applies to the Commerce Clause. State constitutions are amended all the time, to the extent that a lot of them (including California’s) read like statutes. But because of what historian Michael Kammen calls "Constitution worship," Americans are reluctant to tamper with substantive constitutional provisions that, in the words of a 1908 Supreme Court opinion, "are adaptable to the infinite variety of the changing conditions of our national life." Besides, the willingness of the Supreme Court to revisit the meaning of our secular sacred scripture makes the amendment process less necessary. Who knows? After another Obama term and a Hillary Clinton administration, a majority of the Supreme Court may uphold a broccoli mandate.
When Congress was considering amending the Constitution to allow for the criminalization of burning the American flag as a political protest, people like me warned of the perfidy of amending the 1st Amendment. (I make the same argument about an amendment to overturn Citizens United.) If someone were to propose amending the Commerce Clause, I think there would be similar alarums -- including from law professors and journalists who no longer could argue about the proper interpretation of the “old” Commerce Clause.