The individual mandate, sovereignty, and the ends of good government: A reply to professor randy barnett

University of Pennsylvania Law Review

Volumn 159, Issue 6, 2011, Pages 1623-1648

  Brennan, Patrick Mckinley ^a,b  

^a Department of Law ^*  (United States)

^b VILLANOVA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 79960209242     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Note

References (62)

1. See Kevin Sack, Federal Judge Rules That Health Law Violates Constitution, N.Y. TIMES, Feb. 1, 2011, at A1.
2. Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & LIBERTY 581, 586-87 (2011).
3. 3 THE OXFORD ENGLISH DICTIONARY 542 (2d ed. 1989).
4. See id. (citing J. Randy Beck, The New Jurisprudence of the Necessary and Proper Clause, 2002 U. ILL. L. REV. 581, 619);
5. see also Michael Paulsen & Randy Barnett, Debate on the Original Meaning of the Commerce, Spending, and Necessary and Proper Clauses, (Barnett, Statement) (discussing the history and later expansion of the Necessary and Proper Clause) in ORIGINALISM: A QUARTER-CENTURY OF DEBATE 262-73 (Steven Calabresi ed., 2007). Because the Clause was added to the Constitution by the Committee of Detail, without any previous discussion in the Constitutional Convention, it has proved especially difficult for originalists to settle on its meaning. Paulsen & Barnett, supra.
6. see also Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 271 (1993) ("We submit that the word 'proper' serves a critical, although previously largely unacknowledged, constitutional purpose ⋯.").
7. Saikrishna Prakash has defended the view that the Framers were hostile to national commandeering of state legislatures because they are "sovereign," but open to national commandeering of state magistracy. Saikrishna Prakash, Field Office Federalism, 79 VA. L. REV. 1957, 1961-62 (1993). Evan Caminker maintains that the Framers expected Congress to be able to commandeer state legislatures as well as state executive and judicial officials.
8. Evan Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001, 1042-50 (1995).
9. See WILLIAM N. ESKRIDGE JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION 444 (2010) (describing the "rule against federal 'commandeering' of state legislatures or executive officers" as "loosely associated with the Tenth Amendment").
10. As Yves Simon has argued, even a perfectly virtuous group of people would require what he refers to as the essential function of authority, namely, the coordination, for example, of which side of the road one is to drive on. YVES R. SIMON, A GENERAL THEORY OF AUTHORITY 57-60 (2009). Simon further argued that, Even in the smallest and most closely united community, unity of action cannot be taken for granted; it has to be caused, and, if it is to be steady, it has to be assured a steady cause⋯. Now unity of action depends upon unity of judgment, and unity of judgment can be procured either by way of unanimity or by way of authority; no third possibility is conceivable.
11. YVES R. SIMON, PHILOSOPHY OF DEMOCRATIC GOVERNMENT 19 (1951).
12. See, e.g., EDMUND S. MORGAN, INVENTING THE PEOPLE 56 (1988) (contending, convincingly, that the concept of sovereignty was developed in England in opposition to the divine rights of kings). On the role of imagination in making the people sovereign,
13. see PAUL W. KAHN, THE REIGN OF LAW: MARBURY V. MADISON AND THE CONSTRUCTION OF AMERICA 189 (1997). On the historical process by which the English Parliament became "sovereign,"
14. see generally JEFFREY GOLDSWORTHY, THE SOVEREIGNTY OF PARLIAMENT: HISTORY AND PHILOSOPHY (1999).
15. Madison Resolution (June 8, 1789), reprinted in CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 11 (Helen E. Veit et al. eds., 1991).
16. Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991) (citing Hans v. Louisiana, 134 U.S. 1 (1890)). For a chronicle of the American jurisprudential history of sovereignty, see Patrick McKinley Brennan, Against Sovereignty: A Cautionary Note on the Normative Power of the Actual, 82 NOTRE DAME L. REV. 181, 195-204 (2006), which summarizes the "conventional" view of Eleventh Amendment sovereignty.
17. See ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM 14 (2010).
18. See James Wilson, Of the Constitutions of the United States and of Pennsylvania - Of the Legislative Department, in 2 COLLECTED WORKS OF JAMES WILSON 829-32 (Kermit L. Hall & Mark David Hall eds., 2007);
19. James Wilson, Of the General Principles of Law, in 1 COLLECTED WORKS OF JAMES WILSON, supra, at 494-99;
20. James Wilson, Of Municipal Law, in 1 COLLECTED WORKS OF JAMES WILSON, supra, at 549-58, 567-70, 572-78;
21. James Wilson, Of The Study of Law in the United States, in 1 COLLECTED WORKS OF JAMES WILSON, supra, at 443-46.
22. James Wilson, Remarks in the Pennsylvania Convention to Ratify the Constitution of the United States, 1787, in 1 COLLECTED WORKS OF JAMES WILSON, supra note 65, at 215.
23. JOHN STUART MILL, ON LIBERTY 80 (David Bromwich & George Kateb eds., Yale Univ. Press 2003) (1859).
24. Id. "John Stuart Mill argued in effect that the harm principle is the only valid principle for determining legitimate invasions of liberty, so that no conduct that fails to satisfy its terms can properly be made criminal." 1 JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 11 (1984). Occasionally and as an afterthought, however, Mill seems to include the additional category of "offense" within the scope of the criminal law. See MILL, supra note 71, at 160 ("[T]here are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly ⋯ may rightfully be prohibited.").
25. See Randy E. Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 2002-2003 CATO SUP. CT. REV. 21, 35-36 (2003) (arguing that Lawrence was "potentially revolutionary" because it required government "to justify its restriction on liberty" without declaring homosexual sex to be a fundamental right).
26. Lino A. Graglia, Lawrence v. Texas: Our Philosopher-Kings Adopt Libertarianism as Our Official National Philosophy and Reject Traditional Morality as a Basis for Law, 65 OHIO ST. L.J. 1139, 1140 (2004).
27. While not entirely relevant here, there is actually a fifth category of "sovereign" under current Supreme Court jurisprudence, the tribal nation. See generally ROBERT ODAWI PORTER, SOVEREIGNTY, COLONIALISM AND THE INDIGENOUS NATIONS: A READER 3-230 (2005).
28. The reception of Leviathan was by no means uniform, however. See G.A.J. Rogers, Hobbes and His Contemporaries (noting that some of Hobbes's positions "attracted a following" despite a "general hostility" toward his views), in THE CAMBRIDGE COMPANION TO HOBBES'S LEVIATHAN 413 (Patricia Springborg ed., 2007).
29. THOMAS HOBBES, LEVIATHAN 109 (Edwin Curley ed., Hackett Publ'g Co. 1994) (1651).
30. PHILIP PETTIT, MADE WITH WORDS: HOBBES ON LANGUAGE, MIND, AND POLITICS 127 (2008).
31. Id; cf. NORBERTO BOBBIO, THOMAS HOBBES AND THE NATURAL LAW TRADITION 165 (Daniela Gobetti trans., 1993) (noting "Hobbes's particular thesis that it pertains to the sovereign to determine the content of natural laws"). Machiavelli, though engaged in a different project, comes close to Hobbes on the lawgiver's complete independence from antecedent law.
32. See J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 160-61 (1975) (noting that the legitimacy of Machiavelli's innovating prince does not necessarily depend upon law).
33. PEREZ ZAGORIN, HOBBES AND THE LAW OF NATURE 68 (2009).
34. KENNETH PENNINGTON, THE PRINCE AND THE LAW 1200-1600: SOVEREIGNTY AND RIGHTS IN THE WESTERN LEGAL TRADITION 276-83 (1993).
35. See generally Patrick Thomas Riley, Historical Development of the Theory of Federalism, 16th-19th Centuries (1968) (unpublished Ph.D. dissertation, Harvard University) (on file with Pusey Library, Harvard University).
36. OTTO GIERKE, NATURAL LAW AND THE THEORY OF SOCIETY: 1500 TO 1800, at 40-44 (Ernest Barker trans., Beacon Press 1957) (1913) (discussing the debate over whether the people or the ruler was possessed of sovereignty). Catholic social thought in the mid-twentieth century struggled with whether to reject the concept of "sovereignty," as Maritain had insisted it should, or instead to attempt to cabin it, as Johannes Messner and Heinrich Rommen did.
37. See generally JOHANNES MESSNER, SOCIAL ETHICS: NATURAL LAW IN THE WESTERN WORLD 574-629 (J.J. Doherty trans., 1965);
38. HEINRICH A. ROMMEN, THE STATE IN CATHOLIC THOUGHT 397-410 (1945). Harold Laski preceded Maritain in outright rejecting the "sovereignty" of the state.
39. See HAROLD J. LASKI, STUDIES IN THE PROBLEM OF SOVEREIGNTY 1-25 (1917).
40. BERTRAND DE JOUVENEL, SOVEREIGNTY: AN INQUIRY INTO THE POLITICAL GOOD 192 (J.F. Huntington trans., 1957).
41. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 253-69 (2004) (advocating for protection of enumerated and unenumerated rights).
42. The libertarian left rarely faces the governmental arbitrariness that is entailed by giving legal effect to revisable selves. Discussing the Planned Parenthood of Southeastern Pennsylvania v. Casey dictum that "[a]t the heart of liberty is the right to define one's own concept of existence," 505 U.S. 833, 851 (1992), Russell Hittinger argues that [t]here may well be a kernel of moral truth in the Casey dictum, but as it stands the "right" is under-specified. Until it is further specified, no one can know who is bound to do (or not do) what to whom. And so long as that condition persists, there is no limit to the government. On the one hand, we have a principle of unbounded individual liberty; on the other, a government responsible for enforcing that principle in a very arbitrary manner. RUSSELL HITTINGER, THE FIRST GRACE: REDISCOVERING THE NATURAL LAW IN A POST-CHRISTIAN WORLD 130 (2003) (footnotes omitted).
43. See, e.g., ISAIAH BERLIN, LIBERTY 30-54, 216-17 (Henry Hardy ed., 2002) (defending negative liberty against government claims on behalf of positive liberty). On what this distinction between negative and positive liberty means for Hobbes in particular,
44. see generally QUENTIN SKINNER, HOBBES AND REPUBLICAN LIBERTY (2008).
45. MORTON KELLER, AMERICA'S THREE REGIMES: A NEW POLITICAL HISTORY 225 (2007).
46. See also Vivienne Brown, Self-Government: The Master Trope of Republican Liberty, 84 MONIST 60, 71-72 (2001) (arguing that "republican liberty is distinct both from the notion of liberty as 'freedom from' actual or potential interference, and from the notion of liberty as 'freedom to'").
47. See ESKRIDGE & FEREJOHN, supra note 31, at 6-9, 18. For a forceful argument that the only way to amend the Constitution is through Article V, see John R. Vile, Legally Amending the United States Constitution: The Exclusivity of Article V's Mechanisms, 21 CUMB. L. REV. 271, 271-72 (1991), which describes the two methods for amending the Constitution, both of which require Article V.
48. See also Henry Paul Monaghan, We the People[s], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121, 148 (1996) ("Examining the available writings to the extent that I ⋯ could, I can find no evidence - none at all - for the proposition that Article V was understood not to be the exclusive method of amendment because of an overriding and widely shared conception of national popular sovereignty."). For a defense of "common law" techniques of enforcing new constitutional positive rights,
49. see generally Helen Hershkoff, "Just Words": Common Law and the Enforcement of State Constitutional Social and Economic Rights, 62 STAN. L. REV. 1521 (2010).
50. See Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws ("There is plenty of room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text."), in A MATTER OF INTERPRETATION 3, 45 (Amy Guttman ed., 1998).
51. Of course, the Constitution avoids absolutism of a sort by providing for its own amendment, but Eskridge and Ferejohn make a strong case that those mechanisms are so cumbersome as to render the Constitution functionally close to unamendable. ESKRIDGE & FEREJOHN, supra note 31, at 49-50. More important, however, is that having a written constitution does not entail that all that is "constitutional" in a particular nation can be found within that constitution and the case law construing it. The current transformation of the British Constitution demonstrates aspects of the creative tension I have in mind. "The truth is that constitutions ⋯ are never - repeat, never - written down in their entirety, so the fact that Britain lacks a capital-C Constitution is far less important than is often made out." ANTHONY KING, THE BRITISH CONSTITUTION 5 (2007). What is part of the constitution, therefore, will be the legitimate subject of ongoing debate. Even Parliament's pretensions to sovereignty are subject to rejection - a development with lessons worthy of export.
52. See Stephen Sedley, On the Move, LONDON REV. OF BOOKS, Oct. 8, 2009, at 3, 3-5 (chronicling the emergence of a new rule of recognition in British constitutionalism).
53. It is beyond my current purpose to provide much more detail about what I mean by a creative tension. It is sufficient to note that individuals under an indefeasible obligation to create and enforce good governance cannot use texts to absolve themselves of that obligation. I should underscore, however, that in morally heterogeneous cultures such as our own, prudence may well counsel in favor of stricter judicial discipline which, in turn, flirts with the absolutism that is anathema. The history of constitutionalism is the story of how to limit government power while also keeping it in service of the people, their goods, and their rights. See, e.g, CHARLES HOWARD MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN (1947) (providing a history of the development of constitutionalism). For an especially insightful account of how a range of constitutional orders, including our own, are maintained and updated through interpretation,
54. see WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER 460-96 (2007).
55. In her Gifford Lectures, Jean Elshtain argues for the "less-than-sovereign self" on the basis of (among other grounds) our gendered dependency, our vulnerability, and our interrelatedness. JEAN BETHKE ELSHTAIN, SOVEREIGNTY: GOD, STATE, AND SELF 159-80, 227-45 (2008). Among the book's many virtues, it establishes how questions about sovereignty always involve, at least implicitly, tradeoffs among claims about God, the state, and the human person. Human vulnerability and dependence need to be at the center - not the margin - of political theory.
56. See ALASDAIR MACINTYRE, DEPENDENT RATIONAL ANIMALS: WHY HUMAN BEINGS NEED THE VIRTUES 1-11 (1999).
57. For a compendious account, see Robert P. Kraynak, Catholicism and the Declaration of Independence: An American Dilemma about Natural Rights, in MARITAIN AND AMERICA 1-30 (Christopher Cullen & Joseph Allan Clair eds., 2009). The classic account, which is in need of an update, is CHARLES GROVE HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS: A STUDY OF THE ESTABLISHMENT AND OF THE INTERPRETATION OF LIMITS ON LEGISLATURES WITH SPECIAL REFERENCE TO THE DEVELOPMENT OF CERTAIN PHASES OF AMERICAN CONSTITUTIONAL LAW (1930). John Hart Ely acknowledges some of the historical role of natural law argument in American constitutionalism but concludes prematurely that it is "discredited" and "no longer respectable."
58. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 48-52 (1980).
59. A forceful criticism of an insurance-based means of meeting the moral obligation to ensure adequate health care to all is presented in JOHN C. MÉDAILLE, TOWARD A TRULY FREE MARKET: A DISTRIBUTIST PERSPECTIVE ON THE ROLE OF GOVERNMENT, TAXES, HEALTH CARE, DEFICITS, AND MORE 207-22 (2010).
60. At times, Barnett justifies his "presumption of liberty" as no more than a construction - as opposed to an interpretation, following Keith Whittington's distinction - of the Constitution. See Paulsen & Barnett, supra note 15, at 275-76 (Barnett, Discussion) (stating that he does "not claim that the presumption of liberty is an interpretation of the Constitution" and is instead only a "construction"). When Barnett offers a modestly more ambitious argument in favor of natural rights that protect liberty, he does so with the condition that we "want a society in which people can pursue happiness." BARNETT, supra note 89, at 82. The natural law tradition, by contrast, does not rest natural rights on the mercurial contingency of what individuals "want." On a related point, Barnett states that "[n]atural law ethics or 'natural right' is a method of assessing the propriety of individual conduct." Id. Classical proponents of natural law and natural right, however, would hardly find their position recognizable in this question-begging caricature. For them, the natural law and natural right govern everything for the common good, which includes but is not exhausted by individual goods. On the priority of the common good in the natural law tradition, see Charles De Koninck, The Primary of the Common Good Against the Personalists, in 2 THE WRITINGS OF CHARLES DE KONINCK 63-164 (Ralph McInerny ed., 2009).
61. This will be the burden of my forthcoming book, THE SOVEREIGNTY OF THE GOOD: AN ESSAY ON LAW, AUTHORITY, AND THE CHURCH (forthcoming 2013). I have argued for this proposition before.
62. See, e.g., Patrick McKinley Brennan, The Place of "Higher Law" in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys, 7 GEO. J.L. & PUB. POL. 437, 442 (2009) ("Natural law and the natural rights that derive from it ⋯ are all about what is concretely good for humans and their communities ⋯.").