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Fried, Charles

At first, few constitutional experts took seriously the argument that the Patient Protection and Affordable Care Act exceeded Congress's power under the commerce clause. The highly political opinions of two federal district judges — carefully chosen by challenging plaintiffs — of no particular distinction did not shake that confidence that the act was constitutional. This disdain for the challengers' arguments was only confirmed when the act was upheld by two highly respected conservative court of appeals judges in two separate circuits. But after the hostile, even mocking questioning of the government's advocate in the Supreme Court by the five Republican-appointed justices, the expectation was that the act would indeed be struck down on that ground. So it came as no surprise when the five opined the act did indeed exceed Congress's commerce clause power. But it came as a great surprise when Chief Justice John Roberts, joined by the four Democrat-appointed justices, ruled that the act could be sustained as an exercise of Congress's taxing power — a ground urged by the government almost as an afterthought. It was further surprising, even shocking, that Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito not only wrote a joint opinion on the commerce clause virtually identical to that of their chief, but that in writing it they did not refer to or even acknowledge his opinion. Finally surprising was the fact that Justices Ruth Bader Ginsburg and Stephen Breyer joined the chief in holding that aspects of the act's Medicaid expansion were unconstitutional. This essay ponders and tries to unravel some of these puzzles.

The Supreme Court’s constitutional decisions have been a mixed blessing. Some of the Court’s most celebrated decisions have, in the long run, done more harm than good. Mapp v. Ohio, while it might have done a certain amount of good at the time, brought with it an automatic rule of exclusion that has grossly diverted attention from the guilt or innocence of the accused. Others, like Brown v. Board of Education andLawrence v. Texas, were watershed moments in the development of American civil rights. But what made these decisions good or bad? My most important argument will be a negative one: it had nothing to do with the original intent of those who framed or ratified the constitutional provisions in question.

The rise of originalism has brought with it an almost obsessive concern with history. Originalism seeks to substitute keenness of intellect for prudent judgment because the first is thought to be objective. The second is thought to be subjective, thereby subjecting us to the rule, not of laws, but of men. Yet the wise judge recognizes that the search for security and objectivity in history is a will-o’-the wisp. Wisdom, not historical rigor, is the touchstone of good judgment.