Originalism and the "Individual Mandate": Rounding Out the Government's Case for Constitutionality

Dan T. Coenen*

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Introduction

From all appearances, the Supreme Court now is examining whether the new health care act’s minimum coverage provision—often referred to as the "individual mandate"—comports with the grants of power made to Congress by the Commerce Clause and Necessary and Proper Clause. The Court is considering this question against the backdrop of submissions made by the Solicitor General supporting the law and by a group of respondents vigorously attacking the law’s constitutionality. In a separate and more elaborate paper, I suggest that the two sides took dramatically different strategic approaches to the case.[1] The Solicitor General emphasized how the minimum coverage provision was of practical importance to Congress’s comprehensive effort to make health insurance policies broadly affordable on equal terms. Among other things, he argued that the provision guards against the risk that individuals would game the system by strategically waiting until they were ill to buy policies at a favorable, nondiscriminatory price. Although the government relied in part on McCulloch v. Maryland[2] to support the constitutionality of the minimum coverage provision, its argument was overwhelmingly based on modern precedents and pragmatic considerations.[3]

In striking contrast, the respondents rushed to occupy the originalist high ground. Time after time, in both their briefs and oral arguments, they drew attention to The Federalist, the "great Chief Justice," Hamilton, Madison, "the framing generation," "the founding," and "the Framers."[4] Counsel for the respondents took care to direct the Justices’ attention to the "text of the Constitution" and the purportedly "unprecedented" character of the minimum coverage provision.[5] They also sought to draw on the Framers’ original purposes by arguing that invalidation of the minimum coverage provision would vindicate "individual freedom," while ensuring that the federal government would not come to possess "plenary power."[6]

In my earlier work, I argued that these contrasting strategies raised a serious risk for the Solicitor General’s defense of the minimum coverage provision by creating the impression that the respondents held a much stronger hand than the government with regard to originalist lines of reasoning.[7] I also observed that the government in fact had—notwithstanding the picture painted by its non-originalist strategy—a powerful set of originalist arguments it could have made to the Court.[8] In this Essay, I seek to identify the central arguments that the Solicitor General might have offered but did not advance, while also focusing on key questions presented by the Justices at oral argument.

Gifts, Offices, and Corruption

Zephyr Teachout*

Editor's Note: This Essay is Part II of an exchange between Professors Seth Barrett Tillman and Zephyr Teachout on public corruption, policy, and the scope of the constitutional anti-corruption principle. Part I of the exchange is available here. Parts III and IV of the exchange are forthcoming September 2012. For questions or comments about the exchange, or to enquire about submitting a contribution, please contact the Senior Colloquy Editor.

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I. Four Disputes and One Agreement

When the Americans set up their new, independent government, they brought an original attitude towards offices and gifts which separated them from Europe. Gifts, which were part of European diplomatic culture, were recast as corrupt influences. And offices were viewed with fear of their corrupting power, given the examples of Europe. The "corner-stone" of the new Constitution, according to one delegate, was the provision designed to prevent lucrative offices from being sold and traded for political power.[1] This Essay, a response to Seth Barrett Tillman's challenge to my previous writing on founding era anxiety about corruption, is a partial exploration of the scope of the clauses relating to gifts and office holding.

Tillman[2] and I disagree about four significant things, but we agree about one even more significant thing. First, we disagree about how to interpret the changes in the Foreign Emoluments Clause from the Articles of Confederation to the Constitution. Second, we disagree about the precision with which the words "office under/of the United States" were used in the Constitution. Third, we disagree about how important these disputes are for contemporary constitutional doctrine. Fourth, we disagree about the degree of obsession with corruption exhibited by the men who wrote the original American Constitution. The bulk of this response will be to explain some of my thoughts on these disagreements.

A Modest Memoir: Justice Stevens's Supreme Court Life

Laura Krugman Ray*

Editor's Note: This book review is a Colloquy companion piece to the forthcoming Northwestern University Law Review Volume 106, Issue 2, which celebrates Northwestern Law alumnus and former Supreme Court Justice John Paul Stevens's life and career.

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The title of Justice John Paul Stevens's new book, Five Chiefs: A Supreme Court Memoir, tells us several things about the author before we have read a single page. By deflecting attention from the author to his subject, the title makes clear that this book will not be a celebration or even an exploration of Stevens's long tenure on the Court. And by designating the book a memoir rather than an autobiography, the title also cautions us not to expect a detailed account of the author's path to the Court. Instead, the modesty of the title prepares us for the modesty of the author, whose focus will be on the ways in which five Chief Justices ran their Courts. Stevens himself will be at the forefront only when needed to illuminate their successes and flag their occasional errors. Even this project is treated with self-deprecatory irony: the epigraph, borrowed from Lincoln's Gettysburg Address, announces that "[t]he world will little note, nor long remember, what we say here . . . ."[1] This is, in short, a book about the Court itself rather than about the author.