Famed legal theorist Randy Barnett has been writing a flurry of blog posts lately over at The Volokh Conspiracy regarding what is “constitutional” – and, of course, what is not, too.  The focus of late has been a debate at Politico.com regarding the Constitution and national health care. 

Barnett first takes the position that when viewing the Constitution from the perspective of its original meaning, understanding, and intent – that national health care is most certainly unconstitutional.

His latest post is a blistering attack on those who tell us that the Constitution does not mean what the founding generation intended, but instead, it means only what 9 unelected people in robes tell us it means.  Here’s an excerpt:

Professor Jost wrote two things that got my attention. Thing #1 was his reference to those who cite the Tenth Amendment as “Tenthers.” In response, I cited the first sentence of Article I, and the Necessary and Proper Clause as reiterating the view that Congress only has the powers “herein granted” or “vested by this Constitution in the government of the United States, or in any department or officer thereof.” So Supreme Court doctrine that, in effect, finds no limit to Congressional power must disregard not one, not two, but three explicit passages of what many Americans still naively believe to be “the Constitution.”

Thing #2 was the following statement: “a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform.” In this passage, Professor Jost articulates the view of most con law professors–including Orin apparently–that “the Constitution” is what “the Court now recognizes” so the answer to the question of “constitutionality” is to engage in predicting how the Court will rule.

I reject the proposition that “the Constitution” is whatever the Court says it is or, more accurately for present purposes, how the Court may rule in some future case. I insist that “the Constitution” is the wording of the document under glass in DC. So whether something is “constitutional” depends on what “the Constitution”–the real one–says. (Of course, because the written constitution does not answer all questions to which we need answers, constitutional construction is needed to supplement constitutional interpretation. But such construction may not contradict what the Constitution–the real one–says or that construction is itself unconstitutional.) 

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Michael Boldin

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