In his latest post, Prof. Kerr writes that I “want to wage epic battles over natural law versus positivism,” while all he was doing was talking about “what the cases say, for those who happen to care about such things.” But my original point was that there was a discrepancy between Kerr’s loyalty to certain interpretive rules and his abandonment of the same kind of rules when it came to the Constitution. In short, I was asking why should we care what those cases say? (I care profoundly about such things, as we all should.) To this, Kerr essentially responded, “because the cases say it.”
Now, let’s put aside such questions to ask another one. If we are supposed to read the law according to certain interpretive rules because the courts have given us those rules, what about rules that are in the law itself? Surely Prof. Kerr would say that we should construe a statute narrowly if that statute itself says we should construe it narrowly, right? We don’t even have to ask all those messy questions about legitimacy and justice that our founders considered utterly central to any lawyer’s task. If the statute says “read it this way,” we should read it that way, right? And yet the Constitution itself contains precisely such guidelines. Those guidelines are found in places like the preamble, the Tenth Amendment, the Ninth Amendment, or Article I, section1. These things tell us that Congress has limited, enumerated powers, and that we should not interpret the Constitution in ways that disparage the existence of rights not mentioned explicitly in the text. It is not possible to reconcile these guidelines with the extremely expansive understanding of the Commerce Clause that is found in the precedents. Wickard, Raich, and the arguments being made in defense of Obamacare, would expand the Commerce Clause in ways that are utterly inconsistent with these other components of the constitutional machine, threatening the liberty which the Constitution was ratified to preserve and putting at risk the rights to which the Bill of Rights refers. The context, as well, makes clear that the Constitution was not only ratified to preserve certain principles, but that, in fact, those principles are true. Loyalty to the interpretive guidelines provided by the text and an understanding of the philosophical and historical context require us to say that the expansive interpretation of the Commerce Clause is wrong—just as wrong as the silly interpretation of the bus law.
That is...for those who care about such things. Of course, if Kerr wants an interpretation of the Case Law that renders the text and the context irrelevant, I won’t object.
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