Clio on steroids: historical silence as a presumption of unconstitutionality.

• Author: Camardo, Sam
• Position: Introduction through II. The Case Law: The Unprecedented Argument, p. 523-563

"We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present."--Oliver Wendell Holmes (1)

INTRODUCTION

Since March 23, 2010, political pundits have inundated us with rhetoric that either demonizes or defends Congress and the Obama Administration's recent overhaul of the healthcare industry through the Patient Protection and Affordable Care Act (2) ("PPACA"). Most of the debate revolves around section 1501, which requires, with limited exceptions, all Americans to purchase and maintain a minimum amount of health insurance or pay a penalty. (3) Section 1501 has become known as the "individual mandate." (4) The breadth of the individual mandate, whether couched in Congress's power to regulate commerce (5) or to tax and spend for the general welfare, (6) is arguably unprecedented. (7) Indeed, the law's opponents forcefully assert that it is an unprecedented and therefore an unconstitutional expansion of federal power. (8) Proponents argue that those claims do not withstand scrutiny. (9) And the federal government, defending section 1501 in court, dismissed the so-called "unprecedented argument" (10) as "empty rhetoric, not a legal test." (11)

The government's pithy dismissal, however, may be equally rhetorical. At least some federal judges who have reviewed the individual mandate's constitutionality have been more sympathetic to the unprecedented argument. The United States Court of Appeals for the Eleventh Circuit, finding the individual mandate beyond Congress's power, noted, "[t]he fact that Congress has never before exercised this supposed authority is telling." (12) And Senior United States District Judge Roger Vinson, presiding at the trial of the case that the Eleventh Circuit later reviewed, found that while the individual mandate's novelty did "not automatically render it unconstitutional, there is perhaps a presumption that it is." (13) This historic legal dispute is now before the Supreme Court, (14) which will ultimately decide the significance of the individual mandate's novelty.

Framed precisely by the health care debate, the issue that this Note addresses is whether the lack of historical precedent for a governmental action means that the Court should presume that the action is unconstitutional. In concrete terms, "[t]he proliferation of Government, State and Federal, would amaze the Framers...." (15) During this "breathtaking expansion" (16) of Congress's power, there has been a first time for countless powers, and ever-evolving technology will undoubtedly continue the trend. A presumption that an unprecedented governmental action is invalid because of its novelty thus appears ill advised. The Supreme Court has, however, long held that history--of both the Constitution's original meaning and constitutional actors' practices since the framing--is important. (17) After all, as Judge Posner posits, no legal professional let alone judge would simply assert that "[t]his is what the law ought to be today, regardless of what it was yesterday, because we have new problems and need new solutions." (18)

There is, however, often sharp disagreement about what facts the history books reveal and those facts' applicability to contemporary issues. (19) The most notorious problem is "law-office" history, a practice that historian Alfred H. Kelly first described in 1965 as the selection of historical facts to support a predetermined outcome without regard for context or contradiction. (20) The potential for the distortion of the past is compounded when meaning is inferred from historical silence. (21) If the legislature enacts novel legislation designed to manage today's problems, the Court may, despite that novelty, "indulge some latitude of interpretation for changing times." (22) Or, conversely, the Court could confine the legislature to history's strictures--placing a heavy burden on it--when there is no historical precedent for the action.

The former position is more defensible for at least four reasons. First, society evolves and changes over time, making history itself a dynamic construct; stated simply, "tradition is a living thing." (23) Second, the meaning of the past is often ambiguous, which weakens history's authoritativeness over contemporary issues. (24) Third, concluding that historical silence--which is itself often questionable--elicits a negative presumption inescapably involves political or policy judgments that frustrate the People's will. (25) And lastly, though most importantly, congressional actions--except in rare occurrences--are presumed to be constitutional. (26) The first two of these reasons are based on the position that when history garners authority over contemporary issues, it should be accurate. The last two are grounded in the philosophy of judicial restraint and deference to the country's public officials who are elected by and for the People, the ultimate source of our nation' s sovereignty.

The argument advanced here is narrow. It does not call on the Court to ignore history. To the contrary, historical facts are often useful and illustrative of a law's purpose and effect. This Note's focus is confined to the unprecedented or, more specifically, the lack-of-precedent-equals-lack-of-power argument. Further, as Part IV discusses, the lack of historical precedent in certain situations can be a factor, albeit a minor one, in the Court's conclusion that the legislature lacks the power for a given action. Most importantly, and perhaps most disconcertingly, a general presumption of invalidity empowers the Court to invade the province of Congress more frequently and fluently, an invasion that is inevitably in tension with a free, democratic society. (27) Taken to the extreme, it is judicial activism running riot. (28)

But at the end the twentieth Century, more than 200 years after the ink on the Constitution dried, the unprecedented argument assumed unprecedented weight in the Court's decisions. (29) This argument was most pronounced in the Court's anti-commandeering decision Printz v. United States. (30) Justice Scalia, writing for the slim majority, painstakingly described the novelty of the federal government's "use of [the] highly attractive power" of commandeering state and local executive apparatuses. (31) That novelty, Justice Scalia held, "tend[ed] to negate the existence of the congressional power asserted [in Printz]...." (32) Around the same time as Printz, the Court strengthened the state sovereign immunity defense in Seminole Tribe of Florida v. Florida (33) and Alden v. Maine. (34) Both the Alden and Seminole Tribe opinions relied on the unprecedented argument to support the conclusion that Congress cannot abrogate state sovereign immunity using its Commerce Clause powers. (35) All three of these cases were hotly contested 5-4 decisions with sharp disagreement regarding the appropriate reading of history. (36) Use of the unprecedented argument to thwart congressional action was most recently seen in Free Enterprise Fund v. Public Company Accounting Oversight Board, (37) where a questionable interpretation of the reasoning behind a 1789 congressional vote factored heavily in the Court's analysis. (38) All these decisions not only involved law-office history of the highest order, but also centered around what was not said or had not been done.

Part I of this Note addresses the use of history in constitutional adjudication generally and elaborates on the problem of law-office history. Part II reviews the Court's use of the unprecedented argument to justify its conclusions in Free Enterprise Fund, Seminole Tribe, Printz, and Alden. Part III argues that, although the language of those cases may support a presumption of invalidity, that presumption is unjustified. Part IV proposes two principles--candor and consistency--that should guide the Court's review of novel actions. Those principles must be applied with a strong sense of judicial restraint. Finally, Part IV concludes that lawyers and judges evaluating the individual mandate should shift their attention away from the unprecedented question. Whether the government's past actions can be sufficiently analogized to the individual mandate or some historical statements can be found suggesting that Congress could force citizens to purchase a commodity, thereby making the individual mandate "precedented," should not determine the law's fate. Debating history should be left to historians. (39)

1. HISTORY IN CONSTITUTIONAL ADJUDICATION

   Long ago Justice Holmes admonished that "a page of history is worth a volume of logic." (40) Perhaps that aphorism explains the Court's reverence for history in constitutional adjudication. Nevertheless, while all judges agree that lessons from the past can be a useful tool, the weight attributed to history is rather controversial. (41)

   The Court has used history since its inception. Chief Justice John Marshall's conclusion in McCulloch v. Maryland (42) was that Congress had the power under the Necessary and Proper Clause to incorporate a bank. (44) In reaching this decision, Marshall observed that "[t]he principle now contested was introduced at a very early period [in] our history [and] has been recognised ... as a law of undoubted obligation." (44) But Marshall did not employ the country's "acquiescence" with the act to automatically validate the law. (45) "These observations belong to the cause," said Marshall, "but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the [C]onstitution." (46)

   As a preliminary matter, the question when the Court interprets the Constitution is always whether a congressional or executive action is "incompatible with, and repugnant to, the constitutional laws of the Union." (47) When the Court interprets a statute, the text is always the beginning of the inquiry and if unambiguous...