Supreme Court

Roberts vs. Ginsburg on Constitutional Originalism


Chief Justice John Roberts isn't likely to win any popularity contests among conservatives or libertarians today. But fans of the judicial philosophy known as originalism (which holds that the text of the Constitution should be interpreted according to its original public meaning) might still get a smile out of Footnote 4 from Roberts' opinion. In it, he rejects Justice Ruth Bader Ginsburg's attempt at an originalist reading of the Commerce Clause, which Ginsburg believes allows Congress to regulate both activity and inactivity. Roberts writes:

JUSTICE GINSBURG suggests that "at the time the Constitution was framed, to 'regulate' meant, among other things, to require action." But to reach this conclusion, the case cited by JUSTICE GINSBURG relied on a dictionary in which "[t]o order; to command" was the fifth-alternative definition of "to direct," which was itself the second-alternative definition of "to regulate." It is unlikely that the Framers had such an obscure meaning in mind when they used the word "regulate."  Far more commonly, "[t]o regulate" meant "[t]o adjust by rule or method," which presupposes something to adjust. [Citations omitted.]

NEXT: Is There a Silver Lining to the Supreme Court's Obamacare Decision? Q&A with Reason Magazine's Peter Suderman

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I’d rather have lost the footnotes and the dicta and won the decision.

    1. This on a polaris rocket.

    2. +1

  2. Can someone help me out from a constitutional perspective? How is this even legit as a tax? The 16th amendment permits taxation on income, but Article I section 9 forbids capitation taxes, which this strikes me as being. Am I missing something?

    1. I think the general libertarian explanation is, “Fuck you, that’s why.” And goddammit, it’s funny every time!

      1. Yep, it’s actually an addendum to Article I.

        1. Little known fact, Normie: The saying can be traced to Poor Richard’s Almanack.

    2. “No Capitation, or other direct Tax, shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken?”

      I believe they’d make the argument that the tax is proportional to the Census, since everyone has to pay it.

      1. You don’t have to pay it unless you don’t have health insurance.

      2. Proportional to the census was intended to be a reference to the states paying taxes to the federal govt (the way we used to do it). It doesn’t appear to apply in the case of a direct capitation tax levied on the citizen of the federal govt.

        1. Okay, I was guessing in any event. What I see as more likely is hand waving in the odd circumstance that someone actually brings this up.

          After all, the SC declared it constitutional.

          1. Legal Dictionary defines a capitation tax as “An assessment levied by the government upon a person at a fixed rate regardless of income or worth.”

            Does the penaltax vary based on income? Or just the requirement to purchase health insurance and/or the subsidies provided to do so?

            1. It’s kind of a mish-mash of the two. It is a combination of income tax and flat fee. So it is 1% of household income plus $95 per uninsured member of said household. That’s my reading of it. So in part it is capitation.

      3. How much revenue does the treasury expect to take in from this tax in the first five years?

    3. I just think it’s adorable that see some sort of philosophical difference between imposing a penalty and imposing a tax. I mean, they are completely different words after all. The 16th amendment pretty much renders the constitution useless anyway.

      1. *that they see

    4. Let me use an analogy here, the basketball James Naismith created did not allow for dribbling and used a peach basket, among myriads of other changes. Is the basketball now being played the basketball Naismith created?


      The USC was an agreement between the states for a federal compact. Constitutionality means that as fiduciary agents, no parties to the agreement could use the agency created (federal government) to favor one party over another (general welfare of the UNITED STATES, note, not people). There being no higher source of authority to appeal to, each party remained the sole judge of whether that agreement was being upheld, and was not dependent on the other parties as to whether they had to continue within the agreement.

      Lincoln and then the 39th Congress decided otherwise and forced parties to remain in an agreement that was not being used for the general welfare of all parties. This makes the USC a dead instrument.

      Point of the analogy? Just because we still have a “federal” government, does not mean that it is the government authorized under the USC. Yes, I know that this will go over most Americans heads, and that many anti-state libertarians will say “who cares anyway?”, but say what one will, when people continue to act as if the USC is still in effect, rather than acknowledge that the government operates on force and whim, rather than law, then liberty is lost.

  3. But there is “something,” which is to say there is activity. That is participating in the healthcare market, which everyone does by living in a society with a healthcare market that does not necessarily ask people to pay before receiving care. The inactivity argument suggests that people have the right to impose costs on the insured. Whether this unique type of market was envisioned under original commerce clause thinking, it is novel to argue that there is a meaningful distinction between activity and inactivity when the costs exist regardless.

    1. Whether this unique type of market

      No, that is not something unique about the market. That is something unique about the existing regulations within that market. There is nothing inherent to health insurance that commands people to be cared for even in the absence of ability to pay. Rather, existing regulations force people to be cared for even if they’ve failed to make provisions for their own existence. That means that the market itself isn’t unique, but rather the existing regulation, which could and should be repealed.

      1. All markets exist in an environment of regulations and social norms. Scalia doesn’t seem to think so, but it is a norm of modern civilization that healthcare be available when needed, and furthermore people universally expect it to be.

        The whole reason healthcare is served by an insurance model is because that there will be costs is inevitable, but the specific costs are unpredictable. If you ask me the best system is to use this model but take away the profit and multiplied administrative costs that exist in a private health insurance scheme. To argue for going to a premodern form of civilization is not appealing to anyone (but you guys and 4 supreme court justices).

        1. but it is a norm of modern civilization that healthcare be available when needed, and furthermore people universally expect it to be

          Again, not something inherent to the market, but rather something mandated by govt fiat. In either event, it’s worth noting that Health Care =/= Health Insurance. Even if you argue that uninsured these people will be provided with Health Care at a future date through govt edict, that is an altogether different product than health insurance which is nothing but payment mechanism for the underlying care. Therefore, Congress may have the authority under commerce clause to regulate health care under the auspices that you will at one point consume it, but does not have the authority to regulate health insurance under such a rationale because you will not necessarily require insurance at the time you require health care.

          1. So, Tony, you fuckers on your side won.

            Could you stop gloating about it anytime soon?

    2. You know what other markets you participate in, Tony? Yeah, baby, we can regulate declare mandates for those too, now.

      1. I think we need to start forcing liberals to tithe to a local church, just to shut them the hell up.

    3. The inactivity argument suggests The requirement that hospitals not turn anyone away established that people have the right to impose costs on the insured.

  4. Is this the SCOTUS equivalent of flaming her wall?

  5. Maybe it’s an ipso facto emanation from a penumbra qua Dred Scott et al habeus corpus.

    1. Ixnay on the ulingray.

  6. So breathing in the USA constitutes interstate commerce according to Ginsburg? WTF?

Please to post comments

Comments are closed.