One Reason Judges Make Mistakes About the Constitution

Commentary

Many Americans are upset when Congress or federal officials violate the Constitution. Why is this happening?

There are many reasons for this, but the most important is that judges often have to make a decision when they are asked to interpret something in the Constitution. They must do so without understanding the meaning of the phrase or word.

This sounds odd: Judges usually make decisions about constitutional law points only after both lawyers have presented and briefed their case. The Supreme Court, as well as other appels courts, often benefit from briefings by amici-curiae (Latin: “friends” of the court). The Amici curiae outside parties who have an interest in the case, and can offer something constructive to it.

How can a court learn the meaning of a constitutionally disputed provision?

Some Background

Despite the fact that you might have heard it, the Constitution was not written in normal English. It’s written mostly in ordinary 18th-century English. It’s also spiced with words and phrases derived from 18th-century law. It also contains words and phrases that are derived from 0511760817 20th-century law. This requires honesty. The researcher must follow the evidence where it leads and not only use or seek out sources to support his views.

As you can see, many practicing lawyers lack the skills necessary to conduct independent academic research. They don’t have the skills to do this. They are there to represent clients.

When it comes to exploring constitutional law issues, legal academics-law professors are supposed to do the bulk of the work. Some law professors possess the right mindset and skills. But most do not. Most of them are graduates from a select law school and have survived two or three years in legal grunt. They then get hired to be teachers and researchers for whom they don’t hold any qualifications. Many are left-leaning and would prefer to serve their political predispositions rather than do the hard work required for accurate and objective research.

An illustration. A leftist friend of mine who was on my law faculty told me that he doesn’t start a project until he knows what the end result will be.

Yet, judges depend on these biased and untrained individuals for information about how to interpret the Constitution.

Example: The 2012 Obamacare Case

Here’s an example of what I’m describing: In 2012, the Supreme Court heard a constitutional challenge to the so-called Affordable Care Act–Obamacare. Most people know that Obamacare survived that challenge (pdf). They don’t know that the case actually had four major issues, of which Obamacare was one of three winners. This was the court’s ruling:

• The part of Obamacare that required states to increase their Medicaid programs was illegal. It was 7-2.
• Obamacare’s mandate that everyone buy government-approved health insurance was not a constitutional use of the Commerce Clause (Article I, Section 8, Clause 3). It was voted 5-4.
• Obamacare’s mandate that everyone buy government-approved health insurance was not a constitutional use of the Necessary and Proper Clause (Article I, Section 8, Clause 18). It was 5-4.
• However, the penalty for not buying government-approved health insurance was valid as an “indirect tax” under the Taxation Clause (Article I, Section 8, Clause 1). The vote was also 5-4 with Chief Justice John Roberts changing sides.

Many disappointed citizens blame Roberts. Many people blamed Roberts for being timid or trying to please D.C.’s “swamp.” However, they forgot the fact that Roberts voted in their favor on every issue.

In my opinion, the key reason that challengers prevailed on the first three points was because the court had correct information. The court didn’t have enough information to accurately determine the fourth question, which was a key reason why the challengers fell short.

The first question, which was about how far Congress could command states, was governed by contemporary case precedents. These cases are ones that judges and constitutional lawyers know well.

As for the second issue, the court had reliable information on the scope of the Commerce Clause, because of three recent, and very thorough, research studies–including one I had conducted (pdf). These studies showed that the only way to force people into buying insurance wasn’t “regulating Commerce .”

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The court had also reliable information on the third question, which involved the Proper and Necessary Clauses. Shortly before the Obamacare case was heard, Cambridge University Press issued a book on the background and meaning of the Necessary and Proper Clause. This book was in the court’s library. Some amici curiae brought it to their attention. The court quickly discovered that forcing individuals to purchase insurance wasn’t “necessary or proper,” as is the Constitution.

The court not did not have accurate information about the Constitution’s terms for “tax” or “indirect tax.” The majority of research articles at the time were shallow and biased, typical of constitutional law professors. The tax topic was also not taken seriously by many, and it wasn’t well presented or debated.

The justices were forced to take a winging decision on what “tax” meant and how it relates to “indirect taxes”. Only later did we learn definitively that they had reached the wrong decision (pdf).

America needs more qualified and honest constitutional scholars. They won’t get hired at the “woken” law schools. Instead of supporting these universities, donors should support policy centers and schools that promote the Constitution. When enough donors support schools and policy centers that respect the Constitution, bad scholars will be fired while good ones will get the job, and courts will have all the necessary information to make the right constitutional decisions.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.