George Will's argument for "engaged justices"

Guest post by Publius

Publius has lived in and spent most of his life thinking about Washington, D.C. He is an attorney, an avid sports fan, and the editor of The Fourth Branch. This is his first guest post at The Reaction.

(Ed. note: Along with what we already do here, I'm hoping to have more guest spots from bloggers I really like. We used to have a guest blogger every now and then, but when I was doing the Crooks and Liars blog round-up recently I realized I hadn't invited anyone to do a guest spot in ages. Let's get it underway again with Publius (alas, not his real name) from The Fourth Branch. As you'll see in this post, as well as at his blog, he is an extremely thoughtful commentator. His blogging tends to be admirably intellectual and academic (in a good way), and it's a pleasure to welcome him aboard. -- MJWS)

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George Will recently wrote a column entitled "The Case for Engaged Justices," in which he argues that the individual insurance mandate is unconstitutional and that if the Supreme Court acts as "engaged justices," as opposed to "activist justices," they will find the mandate unconstitutional. Mr. Will's column is replete with rhetorical flourish but lacks much critical thought.

Will begins by arguing that the debate over the insurance mandate's constitutionality is really a debate about whether Congress' power to regulate interstate commerce is "infinitely elastic" and says that "if the power is infinitely elastic, Congress can do anything -- eat your broccoli, or else -- and America no longer has a limited government."

First, an admission: If the Congress' power is infinitely elastic, then, yes, it has the power to do whatever it wants. That's not so much an argument by Will as a definition.

Second, a dispute: The debate over the insurance mandate isn't a debate over whether Congress has infinite power. It is, rather, a debate over whether Congress has the specific power to require Americans to purchase health insurance.

Such a proposal is not a wild leap from current laws that presumably Will finds constitutional. Take, for example, the requirement that all working Americans pay into Medicare. In essence, Congress has required Americans to purchase health insurance but to do so for other Americans (through a government-funded program) and not for themselves. Those distinctions aren't irrelevant, but are they so large that overcoming them means Congress must now be viewed as having "infinitely elastic" powers? Hardly.

Will argues that the legal answer to the constitutionality of the health insurance mandate can be found in an opinion of a Texas judge. In the Texas case cited by Will, a man dying of asbestos exposure sued a company for damages. The Texas legislature, after the suit was filed and the harm inflicted to the dying man, apparently passed a law immunizing the company (and others) from the lawsuit. The Texas judge held that the law violated the Texas constitutional prohibition on retroactive laws and that the lawsuit could proceed. Will concludes that the decision stood for the principal that legislative actions, even when intended to protect the general welfare (such as the insurance mandate), cannot trump constitutional limitations on power.

Will would do well to note that the case was not decided on U.S. constitutional grounds, and so its applicability is tenuous at best. Regardless of that significant distinction, it is perhaps even more significant to note that retroactive laws are expressly prohibited in Article I, Section 16 of the Texas Constitution as applied to a pending action. In other words, the "constitutional limitation on power" is clearly articulated in the Texas Constitution. Unfortunately for Will's analogy, that's not the case with the insurance mandate. Nowhere does the U.S. Constitution specify that "Congress shall not pass an individual health insurance mandate."

Will appears to argue that such a prohibition can be inferred from "the first words of the Bill of Rights: 'Congress shall make no law...'" Will ought to read the rest of the Bill of Rights. He would note that such language doesn't apply to the entire Bill of Rights, it applies only to the First Amendment (which involves speech, press, assembly and petition, and religion).

Oddly enough, Will concludes his argument with a statement that appears to favor the individual mandate. Will states (quoting in his first sentence the Texas judge from the case above):

"There is a profound difference between an activist judge and an engaged judge." The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means. Let us hope the Supreme Court justices are engaged when considering the insurance mandate.

The issue in this case isn't one of "creating rights," which is what Will believes defines an "activist judge." The issue is defining the scope of Congress' power to take certain actions. It's highly unlikely the Supreme Court would hold, for example, that Congress can't pass the insurance mandate because Americans have a constitutional right not to buy health insurance if they don't want to buy it. In fact, if the Supreme Court acts under Will's definition of an "engaged justice," the Court could not make such a holding (the right not to purchase health insurance wasn't "actually placed" in the Constitution by the Framers).

(Cross-posted from The Fourth Branch.)