Written constitutions: a warning from America

by Carl Gardner on March 28, 2012

The United States Supreme Court is currently hearing Department of Health and Human Services v Florida, in which President Obama’s Health Secretary Kathleen Sebelius is appealing the decision of a Federal Court of Appeals that the Patient Protection and Affordable Care Act – Obama’s healthcare reform legislation, and his major achievement in domestic social policy – is in breach of the Constitution.

The core element of the legislation is the “individual mandate” provision in the Act, which requires individuals to obtain a minimum amount of health insurance, if not already covered by an employer’s or publicly-funded scheme. Arguments about that were heard yesterday; other constitutional questions relating to the Act were heard on Monday and will be heard today.

The particular constitutional provision the individual mandate is said to breach is Article 1, section 8 which sets the limits of Congress’s power to legislate:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states …

….    –And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The federal government’s argument is that Congress had power to enact this legislation under three parts of the edited text I’ve just cited: the “tax and spend” clause (the first paragraph above), because the individual mandate is enforced by means of a tax penalty; the “commerce clause” which gives power to regulate inter-state trade, since the Act is classic economic regulation of a national market; and the “necessary and proper” clause at the end of my edited quote, since it’s a reasonable means of achieving Congress’s reasonable policy aim.

The states argue that the individual mandate is not a tax, that the Constitution permits Congress only to regulate commerce, not to compel anyone to enter into commerce by buying a service, and that the “necessary and proper” clause does not apply since the individual mandate does not fall within “the foregoing powers” of Congress set out in section 8.

The various briefs of the parties can be downloaded here; I’ve uploaded the federal government’s and the state respondents’ briefs on the individual mandate for you to read here.

ABC news live blogged yesterday’s proceedings and has provided audio of yesterday’s arguments, and a transcript. You can read their full coverage of the case here, and excellent NPR coverage here. There’s also terrific coverage at the SCOTUS blog, the Volokh Conspiracy, Concurring Opinions and the Constitutional Law Profs Blog.

This case seems, and is, extraordinary from a British perspective. Partly that’s because we routinely misunderstand American politics, forgetting the importance of Congress and its fundamentally limited power compared to our own omnipotent Parliament, and almost always neglecting the power of the states and the balance the Constitution holds between them and Washington. For instance, my natural reading of the “tax and spend” clause was to see it not as limited to taxing and spending at all but as saying

The Congress shall have power to … provide for the … general welfare of the United States

That, though, is a reading arguably at odds with the entire limited-government, federal nature of the US Constitution. Cornell University’s excellent annotated Constitution puts me in my limey place, making clear that, although the point has been argued occasionally (phew!), the “general welfare” clause is generally read not as a free-standing power but as a qualification of the power to tax; in other words, it means

The Congress shall have power to lay and collect taxes … to … provide for the … general welfare of the United States

More legitimately, it seems extraordinary viewed from here that legislation promised by President Obama before he was elected, which he was voted in to deliver, and which was approved by both Houses of Congress, might seriously be struck down by judges – which is what Florida and the other respondent states are in effect asking it to do. I’m a great admirer of the United States and its constitution – it’s perhaps the most successful legal instrument ever designed by men. But the American way of constitutionalism seems, here, at odds with democracy. From a British point of view, it seems obvious that the government “of the people, by the people, for the people” of which Americans are rightly proud should mean that the people’s will is law.

But of course this is because, as Dicey argued long ago, we’re used to a sovereign Parliament which can enact legislation without judicial comeback. I know EU law is supreme, and that to a lesser extent Acts of Parliament are measured against human rights laws, but those are limited constraints from which Parliament if it wishes can free itself. They’re very different from the more rigid constraints on Congress.

So this case should serve as a warning to us from across the Atlantic. In particular, it’s a warning to those of us in Britain who count ourselves as on the social democratic side of politics and who believe the state can actively do good. Some people argue for a written constitution here, or for elements of a written constitution, such as a British version of the First Amendment. But any such move would inevitably give conservative forces greater power to block, by litigation, socially progressive legislation. Anyone who counts themselves liberal should pause to think how relatively easy it has been for Parliament to bring in civil partnerships, and will be for it to bring in gay marriage, as compared with the agonies the issue causes in America.

We should resist the siren call of the written constitutionists – and preserve, protect and defend our existing constitution, to adapt words from another context.

{ 18 comments… read them below or add one }

1 Simon Carne March 28, 2012 at 17:38

Yours seems to be an odd interpretation, Carl. Setting aside the philosophical and governmental arguments for a moment, the sentence is as follows:

“The Congress shall have power to lay and collect taxes …, to pay the debts and provide for the common defense and general welfare of the United States”

From a purely interpretational point of view, we can either read the comma followed by the word “to” as denoting “in order to”, or we can see the comma as indicating that this is a list of three things that the Congress has power to do: (1) collect tax (2) pay debt and (3) provide for the general welfare.

Linguistically, neither interpretation is a clear-cut winner – and either of them can be better achieved by writing the sentence more clearly – but, if the second interpretation were to prevail, wouldn’t the list have to be exhaustive? And wouldn’t the sentence then mean that Congress had the power to pay debt – but that’s the job of government (isn’t it?), not Congress.

But we can, as you say, certainly do without this sort of debate in our courts!

2 Lallands Peat Worrier March 28, 2012 at 18:01

Not so extraordinary for we Scots lawyers, who’re familiar with a very similar sort of Court jurisdiction, reviewing Acts of the Scottish Government and Parliament, under Westminster’s Scotland Act. You likely read the UK Supreme Court’s AXA decision on the compatibility of Holyrood’s pleural plaques legislation with A1P1 of the European Convention, which is a clear case in point. Out of curiosity, given the complexity of “our” constitution in the UK (if only you look outside Westminster), what do you make of devolved legislatures, making decisions essentially identical to Westminster on matters of public policy, being susceptible to judicial review in this way?

3 Andrew Smith March 28, 2012 at 18:18

Your view that American-style constitutions can only be forces in favour of conservative outcomes is, I think, not held up when one considers constitutions generally, rather than this single, as yet undecided, example. There are many progressive constitutions – the South African, Canadian or Indian ones are striking example – where the constitutions themselves ensure progressive outcomes. An outdated and ambiguous written constitution like America’s certainly allows for interpretations which might, when the SCOTUS is packed with Republican appointees, tend to be conservative. But modern constitutions ensure that governments which trample on rights – perhaps by passing vicious laws, with the requisite majorities – are held to account. Constitutional supremacy, having been mandated by the people originally, is not necessarily anti-democratic. The reverse might well be true. Parliamentary democracy in many countries other than the UK (assuming there were no EU safeguards) could well lead to terrible injustices.

4 Zachary Cloud March 28, 2012 at 18:48

Very interesting observations for me. The only part I’d push back against is your contention how extraordinary it is that legislation is in peril. As an American, I didn’t share your surprise that the legislation is in trouble because there has been around half of the country here that has continued to oppose it since its introduction into Congress. It passed in a much weaker form than when it went in (originally, it was actually going to establish something much close to universal health care as found in Europe) and still only barely passed.

I have been most surprised that the challenge is facial. I rather suspected that the US Supreme Court would wait for an as-applied challenge once the law had gone into effect. Their decision to take the matter right now suggests—perhaps only to me, but to me nevertheless—some interest in affecting the outcome of the 2012 Presidential Election. Indeed, these cases could have easily been taken next term when a judgment would post-date the election but precede implementation of the legislation. That they didn’t wait for a facial challenge—or even until next term—is a telling reminder of the political underpinnings of the American judiciary.

5 Ben March 28, 2012 at 20:26

Once again I would take issue with the idea that constitutionally limited legislative power is undemocratic. If it is appropriate to change the constitution to allow Congress to pass Obamacare, then by all means change the constituion – using the prescribed procedure.

Other than that, there is of course federalism. If socialized healthcare is popular in your state, you can still do it.

If you want to argue that Obamacare is so goldarned obviously democratically approved, you really have to explain why every single state doesn’t already have an equivalent plan. (Isn’t this Romney’s claim to fame?)

The truth is, it just isn’t that popular an idea in the US.

The point of Obamacare as a Federal act, is to override the democratic preferences of certain states in favour of …. well some would say increasing the power of the Washington elite. Or…. or what? If Arkansas won’t vote for Romneycare, how is it democratic to foist it upon them from above?

Finally — Finally, it is important to tell the truth about the US system. Nobody is refused emergency medical treatment in the US, because it is illegal for any federally funded hospital to do so. (i.e. any which takes medicare or medicaid money). You will get your broken leg patched up. They will probably present you with a bill afterwards, it is true, but you will not be left to bleed on the sidewalk. For people in poverty, the bills are rarely collected. Instead hospitals write them off as charity, which under the US system is a big tax break. In effect, this is a levvy on every health insurance policy to fund emergency cover for the uninsured. The net upshot is that, de facto, EVERYONE ALREADY HAS EMERGENCY COVER IN REALITY. What’s not covered is long term treatment.

6 Lloyd Jenkins March 29, 2012 at 00:22

This is a great post, Carl. It’s nice to see some scepticism of constitutional review from the liberal left.

I think there’s more to be added to the case against it. Constitutional judicial review seems to rely on the assumption that constitutional issues are somehow distinct from the social, ethical and economical questions of day-to-day politics. I don’t see how that assumption can be supported: you need only look at the ECJ’s confused caselaw on human rights to see that.

If that distinction is intennable then courts aren’t expert bodies but particularly poor places to decide constitutional questions.

7 D-Notice March 29, 2012 at 07:36

Isn’t there a further issue in that the US system is a warning about politicising a country’s legal system?

I read many US websites and as soon as the Court gave permission to appeal, the consensus was that 4 judges would rule to uphold it and 4 would rule to scrap it, simply based on the judge’s own political leanings & how they’ve expressed them in the past through their judgments.

8 Ben March 30, 2012 at 00:41

@d-Notice – a warning about what now?

In the US, the politics of judicial appointments are honest and open. In the UK, they are behind closed doors. But to imagine they don’t exist is… to suggest that you think operating behind closed doors suits your side better.

As Gramsci pointed out, the institutions are inherently political, they are already contested. Both the left and the right should recognise that contesting the institutions, including the judiciary, is legitimate, and should do so openly and honestly.

The US Federal system is a good example in that respect. The Federal judges are appointed for life, and on merit, but by the party in power at the time. They are rarely political partisans. Rather, as Carl suggested a couple of posts ago, the are people of conviction, adherants of particular theories of jurisprudence, who are chosen because those theories are conducive. Like Thomas Moore, they very often change their views when appointed, and cannot be recalled or replaced, or controlled, and rarely if ever show any sign of feeling a debt to the party who put them there. After all, they were appointed on merit, so what do they owe?

@Lloyd Jenkins, constitutional judicial review is inherently conservative-with-a-small-c, but conservatism-in-the-lower-case is not inherently of the right. It can protect the left too – you may not like the second or tenth amendment, or the commerce clause, but I’ll bet you like the first, fourth, fifth and sixth. Someday you too may need the shelter of an inalienable right.

9 Lloyd Jenkins April 1, 2012 at 21:18

I don’t deny the necessity of inalienable rights. I just think that judges are poorly placed to work out what the content of a right is.

10 D-Notice April 2, 2012 at 12:08


Serious question: is there anything to suggest Judges in the UK are politically-biased or that their decisions are impacted by their political beliefs?

11 Jonathan James April 2, 2012 at 14:11

“Anyone who counts themselves liberal should pause to think how relatively easy it has been for Parliament to bring in civil partnerships, and will be for it to bring in gay marriage, as compared with the agonies the issue causes in America.”

My worry about this sentiment is its inherent anti democratic slant. If the broad electorate does not agree with your proposed reform, how in a democratic society can you legitimately institute it? There was a time when an aristocratic elite called the shots. At other times it has been an ecclesiastical elite. We have ditched these forms of government as being inherently flawed and unethical. Why should a liberal elite be any more justifiable?

Your point about the democratic legitimacy of Obama’s reforms is well made, but you have to live with the corollary – if something is not democratically supported it is simply illegitimate. I know it can be supremely difficult to persuade the electorate to support some measures but the price of living in democratic freedom is that to institute change, you have to generate that support before it is made, not afterwards.

12 Jim Nately April 3, 2012 at 10:54

One of the important distinctions between the role of the judiciary in the US & the UK is the extent to which the Supreme Courts can override the legislature.

In the UK there is no power to override the legislature. Those powers the Court has to interfere at all with primary legislation are derived from primary legislation & Parliament could revoke those powers. In the US, of course, things are very different.

Gramsci may have viewed the judiciary as political—but of course that isn’t a consensus opinion. Due to the limited power of the UKSC, there are fewer political cases before it, whereas in the US everyone from the ACLU to the NRA and Citizens United are using litigation as a method of advancing the policy aims they support.

Therein lies the trouble. Presidents expect to be able to appoint judges whose political & jurisprudential leanings are conducive to their politics. For pretty much every contentious case going before the USSC you can predict a 4-4 split on partisan lines with Kennedy usually as the swing vote. Even Jones (warrantless GPS tracking) spits out a partisan split on whether the Katz test would be the paramount principle.

That the majority of Americans seem to recognise the partisan nature of the USSC only serves to diminish its respect as an institution. In the UK, there is a great preference to keep both political decisions and would-be politicians out of the courtroom.

The example of the difference in the way the courts treat recusals is illustrative. Justice Thomas seems set to crack on, quietly ignoring the fact that his wife is involved with one of the groups opposing the ACA. Lord Hoffman’s wife’s involvement with Amnesty International lead to a rehearing of ex parte Pinochet and a bit of public opprobrium.

In one case justice must be seen to be done & the appearance of bias is regarded as completely unacceptable. In the other, the loss of a Republican powerhouse from the bench is regarded as intolerable in a case set to divide on party lines, appearances be damned.

Is it really that surprising that Brits would rather not have those kind of problems in their courtrooms?

13 kris April 5, 2012 at 18:25

“Warning from across the Atlantic”?!!!!!

Yes, entrenched liberty and freedom from Federal Government intrusion into citizens’ lives is a scarey concept indeed!

You prefer an elective dictatorship? The tyranny of the majority? Mob rule?

And BTW, where do you think your beloved ECHR came from? You may thank the Roosevelts, FDR’s “Four Freedoms” and the natural law rights recorded in the constitution.

And therein lies the rub: Government does not give rights. I am born with my natural rights and those rights are recorded in the Constitution.

British rights are at the mercy of Camcorderdirect. So seriously, I don’t think we’ll be taking any lessons from the Brits on rights.

In the meantime, the States are the little democracies. And States have state health-care.

Obama could have passed a Bill funding the respective States’ health-care.

Obama could have raised tax and extended Medicare.

But what Obama and the Congress cannot do is make people buy stuff.

14 kris April 6, 2012 at 00:01
15 M April 7, 2012 at 10:00

As a Canadian, I find both the American and British systems incredibly foreign. Whenever I am feeling ill, I simply go to my doctor and if its serious enough I’ll go to the hospital. The system has always been there – at least in my lifetime. I know of Tommy Douglas and his struggle for medicare but only through the history books. I simply don’t understand why the idea of free medical care is so controversial. Call it Canadian ignorance.

Having lived in the UK for a number of years, I’ve noticed an alarming divide in the education system. It seems that the free education that I received in Canada is comparable to the so-called public school system in the UK. Indeed, the only advantage I seem to have over my colleagues in the work force is that I went to school in another country. This can’t be right?

16 Ben April 8, 2012 at 12:04

@Jim Nately,

“Therein lies the trouble. Presidents expect to be able to appoint judges whose political & jurisprudential leanings are conducive to their politics. ”

Jim, that is how it is supposed to work. The president is entitled to use appointments to move the position of the court. That is the mechanism by which the court is kept from wandering too far from public opinion – which is the risk with “independent” appointments by secretive committees of insiders.

“Gramsci may have viewed the judiciary as political—but of course that isn’t a consensus opinion. ”

Isn’t it? Are you sure? Not party-political, perhaps. But I cannot see how to avoid the fact that judges have philosophical views with political consequences, and that their appointments and judgements are therefore of political interest.


“Serious question: is there anything to suggest Judges in the UK are politically-biased or that their decisions are impacted by their political beliefs?”

I don’t think I said that judges were or ought to be party-political. I said that judges are adherents of different theories of jurisprudence, and that political parties had preferences for particular theories of jurisprudence. That is, there are moral, political, and party-political consequences to judicial theory.

People, I imagine, become judges because they wish to improve the quality of justice. And inevitably they have differing ideas about what constitutes improvement. Lord Denning was elevated for his success in just such an internal reform campaign.

Is this political? Yes. Is it party-political? I don’t think so. Do the parties care? Yes, of course. Should political people care about who is appointed as a judge? Yes, of course.

17 kris April 11, 2012 at 19:59

just perusing some old tweets of and recalling the Iowa, Indiana and California State Supreme Courts’ ruling that despite “Defence of Marriage” Acts passed by their respective Legislatures and, in California’s case, by the People themselves, that gay marriage is a constitutional right that cannot be voted away by the majority.

Minority rights and limited government are entrenched in our constitution.

David Boies and Ted Olsen, a liberal and conservative respectively, made powerful arguments why gay marriage was constitutional in California. Bearing in mind that the States can only add and not take away Federal rights, are you going to take the side of the majority who want to deny gays equal protection and full faith and credit under the constitution?

18 Helen Lumburn April 19, 2012 at 03:49

Strangely enough, when I worked in the US I had SS taken from my monthy pay checque, I had tax taken too. I wonder what that was for? Everyone was paying for a pension and had no choice?

If so, then the Americans can quite easily create their version of an NHS as they wish and remain within their Constitution.

Who paid to have Neil Armstrong sent to the moon? Did they have a choice in the matter? It is bizarre to think that currently Jeremy Scahill is reporting Tomahawk missiles are being fired in Yemen by JSOC, an activity that surely will lead to death and blow back. That is in no way defending America. Quite the opposite. Where is the Constitutional argument over that?

What stikes me as bizarre, is Americans treat their Constitution as though it were carved in stone and brought down from the Mount by Moses.

Survey the nations of the world and you will see they do alter their Constitutions when they see fit to do so. And they often do so by holding a national referendum. That stands to reason. Why wouldn’t you consider doing that as the centuries pass?

America is broken. They’ve become a country where Unreason rules. That is not a problem with having or not having a wirtten Constitution, it is something else altogether. The debate over healthcare is a just another symptom of how broken it has become.

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