Are We All Originalists Now?

The debate over ObamaCare highlights a growing division on the legal left


On May 27, 1935, the U.S. Supreme Court unanimously struck down the New Deal's National Industrial Recovery Act for exceeding Congress' lawful authority "to regulate commerce…among the several states." In response, President Franklin Delano Roosevelt denounced the Court for adhering to the Constitution's original meaning. "The country was in the horse-and-buggy age when that clause was written," Roosevelt declared. His administration favored a different method of legal interpretation, one that would "view the interstate commerce clause in the light of present-day civilization."

That method was called "sociological jurisprudence" and progressive activists had been promoting it for decades. As the liberal legal scholar Roscoe Pound explained in a seminal 1909 article in the Yale Law Journal, this school of thought involved "the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles." In other words, the text of the Constitution should not get in the way of progressive-minded legislation. It was an approach Roosevelt and his allies—including the eight justices he appointed to the Supreme Court—frequently took to heart. As New Deal policy maker Rexford Tugwell bluntly put it in his 1968 memoir The Brains Trust, many New Deal laws "were tortured interpretations of a document intended to prevent them."

Today this approach falls under the broader heading of the "living" Constitution, and it still has plenty of fans in American law schools, courtrooms, and legislatures. But it's not the only school of thought popular on the legal left.

Consider two very different arguments made by prominent defenders of the Patient Protection and Affordable Care Act's individual mandate, which requires every American to obtain health insurance under Congress' authority to regulate interstate commerce. In an issue brief published this week by the American Constitution Society (a self-styled liberal counterpart to the conservative Federalist Society), veteran left-wing legal activist Simon Lazarus defends the constitutionality of the individual mandate in the wake of U.S. District Judge Roger Vinson's decision striking it down.

In addition to making the usual arguments in favor of reading the Commerce Clause broadly enough to provide Congress "the running room necessary to target objectives and craft effective solutions," Lazarus also relies on a legal tactic typically associated with conservatives: an appeal to the Constitution's original meaning. Not only does a broad interpretation of the Commerce Clause result in good public policy, Lazarus argues, it also represents "a restoration of the vision of the original Framers, who sought to supplant the feckless Articles of Confederation with a charter for effective and responsive national governance."

It's a surprising claim to find on the left. Indeed, it would have caused FDR and his Brain Trust to scratch their heads in wonder. The original progressives wanted the courts to move as far away as possible from the Framers' "horse-and-buggy definition of interstate commerce."

Now contrast that with the arguments made by another leading defender of the health care law, Georgetown law professor David Cole. Writing in the latest issue of The New York Review of Books, Cole takes aim at the recent decision by U.S. District Judge Henry Hudson, who, like Judge Vinson, struck down the individual mandate as an unconstitutional regulation of interstate commerce.

"Judge Hudson's decision reads as if it were written at the beginning of the twentieth rather than the twenty-first century," Cole argues. Among other things, Hudson relied on a "formalistic" judicial method "long since abandoned," one that would hamstring the workings of the federal government if revived. "In the local, agrarian economy of the Constitution's Framers, it might have made sense to draw such distinctions," Cole writes, "but in an industrialized (and now postindustrialized) America, the local and the national economies are inextricably interlinked."

Think about the difference between these two positions. Cole basically restated Roosevelt's attack on the "horse and buggy" Constitution—and by doing so he presented a liberal challenge to Lazarus' progressive brand of originalism. After all, if the narrow Commerce Clause interpretation endorsed by Judge Hudson and Judge Vinson would have "made sense" to the Framers, how can Lazarus possibly be correct that a broad interpretation of the same clause would count as a "restoration" of those same Framers' vision? To put that another way: Is progressive originalism at odds with the progressive agenda?

These are the sorts of questions the legal left must face as it closes ranks in defense of the individual mandate. Expect some pretty big chinks to appear in their armor as the ObamaCare battle works its way to the Supreme Court.

Damon W. Root is an associate editor at Reason magazine.