One reason judges make mistakes about the Constitution

By: Rob Natelson

Many Americans complain when the courts allow Congress and federal officials to violate the Constitution. Why does that happen?

There are several reasons, but here’s 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 by amici curiae (Latin for “friends of the court”). Amici curiae 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 isn’t written in ordinary English. It’s written mostly in ordinary 18th-century English. It’s also spiced with words and phrases derived from 18th-century law. (Some examples of technical legal terms in the Constitution are “habeas corpus,” “necessary and proper,” and “Privileges and Immunities.”) 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 don’t have the necessary skills for impartial academic research. And that’s 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 academics—law 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

Here’s an example of what I’m describing: In 2012, the Supreme Court heard a constitutional challenge to the so-called Affordable Care Act—Obamacare. Most people know that Obamacare survived that challenge (pdf). What they don’t realize is that there were actually four 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 7–2.
• Obamacare’s 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 5–4.
• Obamacare’s 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 5–4.
• However, the penalty for not buying government-approved health insurance was valid as an “indirect tax” under the Taxation Clause (Article I, Section 8, Clause 1). This vote also was 5–4, 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. “swamp.” 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 issue—how far Congress can command the states—was 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 studies—including one I had conducted (pdf). The conclusions from these studies made it clear that forcing people to buy insurance was not “regulating Commerce.”

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 a book on the background and meaning of the Necessary and Proper Clause. The court had this book in its library, and some amici curiae brought it to the justices’ attention. It didn’t take much effort to find out that forcing people to buy insurance was not “necessary and proper,” as the Constitution uses the phrase.

But the court did not have reliable information on the Constitution’s terms “tax” and “indirect tax.” Most of the research articles then available were typical of law professors’ constitutional work—shallow and biased. Also, few people took the tax issue seriously, so the subject was not well briefed or argued.

Thus, on the meaning of “tax” and “indirect tax,” 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 won’t be hired by law schools at “woke” 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 “scholars” will be fired, good ones will be hired, and the courts will have the information they need to make correct constitutional decisions.