The Liberal Shock and Awe at the Supreme Court

Much has been written this past week about liberals' surprise at, and sometimes panic over, the serious way in which a majority of the Supreme Court justices approached the constitutional arguments of the parties challenging Obamacare.

For the most part, conservative commentators have explained the liberal shock and awe by noting the fact that liberals often live in an intellectual bubble in which their own ideas are constantly re-enforced and never questioned. Inside this bubble, the shallow prejudice that holds conservatives are greedy, mean-spirited, bigoted and backward idiots is considered a self-evident truth. Ergo, the conservative legal position must be absurd.

And this is all true. But there is another important legal and political reason that liberals initially and consistently dismissed the constitutional attack on Obamacare. In general, liberals conceive of the Constitution not as a concrete legal document, but as an abstraction. Liberals have developed all manner "theories" of the Constitution--the "partial Constitution", the "invisible Constitution", the "living Constitution"--cooked-up by law professors and other so-called "experts."
In short, these "theories" approach the Constitution not as one would ordinarily approach a legal statute, but instead purport to divine the spirit of the document. The liberals have come to see the Constitution not as a legal document to be treated by courts as they would treat any other statute, but as an aspirational document whose "values" are supposed to guide our government in general manner. Their theories deride the those who actually rely on the Constitution's words and historical development as "textualist" or "originalists"--implying that there are competing theoretical conceptions of the Constitution akin to the tension in philosophical schools, like the tensions between Platonic and Aristotelian thought.

This view of the Constitution--that it is a complex, quasi-philosophical document not susceptible to ordinary principles of statutory interpretation--leads to the liberal bewilderment witnessed this past week. For the opponents of Obamacare argued their case not based upon some abstract notion allegedly underpinning the Constitution, but on the actual words in the document and the indisputable historical context in which those words were put to parchment.

And, lo, the justices actually engaged with these arguments--arguments that asked the Court to perform the kinds of statutory interpretation that lower state and federal courts perform as routine business.

The Constitution empowers Congress to "regulate Commerce...among the several States." Is requiring an individual to purchase a product and enter into a contract with a private entity the regulation of commerce?

The Constitution was intended to give specific, enumerated powers to the federal government. Would upholding the individual mandate effectively grant Congress a general police power and destroy the constitutional scheme of a limited federal government?

To anyone who actually reads the words of the Constitution and who has taken an eighth grade American history course, these questions would appear as obvious and legitimate issues for judicial concern. But not so to liberals. Immersed in their theories and the flimsy court decisions of their fellow-travelers from the last century, liberals do not take seriously the plain words of the Constitution or the notion of a limited federal government.

In their view, government is meant to be a problem solver and, as such, the government is inherently empowered to do whatever is necessary to address problems, especially if the power exercised relates to a seemingly well-intentioned program to combat real or perceived economic inequalities.

Whatever the merits of this conception of government, it is not the one for which the Constitution provides. Only those who do not take the words of the Constitution seriously could possibly be shocked by the fact that the justices of the court charged with interpreting those words and their intended meaning actually did so this past week.