by Rob Schwarzwalder
July 22, 2014
According to the Center for the Study of Constitutional Originalism, “Originalism is the view that the Constitution should be interpreted in accordance with its original meaning — that is, the meaning it had at the time of its enactment.”
Yep — that’s what conservatives believe. The written text had and has a defined meaning, alterable only by amendment. As Senator Mike Lee (R-Utah) has written, “The Constitution itself is not a document of convenience. It specifies an onerous process — bicameralism and presentment — to pass legislation. It imposes a system of checks and balances among the branches. Perhaps most important, it limits the types of power the federal government can exercise.”
That’s not what President Obama believes, however. In his article, “A Brief History of Obama’s Biggest Constitutional Flops,” constitutional scholar Damon Root writes, “Despite his training as a former constitutional law lecturer, President Barack Obama continues to push dubious legal theories that fail to persuade even the most liberal justices to vote in his favor.”
Prior to his election to the U.S. Senate, Mr. Obama expressed great frustration with the “constraints” of the Constitution, observing of the Supreme Court under the late Chief Justice Earl Warren, “… the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it’s been interpreted, and Warren Court interpreted in the same way that, generally, the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted.”
At least Mr. Obama admits, albeit grudgingly, that the Founders actually meant something definitive when they wrote the Constitution — even though the then-law school lecturer implies we need to “break free” of such limitations.
So it came as a surprise today when his spokesman cited original intent in chiding the U.S. Court of Appeals for the District of Columbia for issuing a ruling stating that the wording of the Affordable Care Act does not give license to the federal government to “subsidize health insurance premiums for people in three dozen states that use the federal insurance exchange.”
“You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who were running the marketplace,” White House spokesman Josh Earnest said. “I think that was a pretty clear intent of the congressional law.”
So, now President Obama is concerned with the intention of federal law? Well, that’s great news. I wonder how that will apply to, say, the First and Tenth Amendments of the Constitution, which he has, up to now, only applied at best erratically. Their meaning, and the meaning of the Constitution generally, can be known through the Federalist Papers, James Madison’s “Notes of Debates in the Federal Convention in 1787,” and the ratification debates held in the states as the early Republic wrestled with whether or not to affirm the Constitution itself.
However, the original intent of any document is expressed in its text, not in what we wish it would be. And the text of Obamacare provides no basis for the federal subsidization of health insurance premiums for, again, “people in the three dozen states that use the federal insurance exchange.”
You can’t have it all ways, Mr. President — either originalism based on the clear meaning of the text matters or it doesn’t.