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On the Left, the Obamacare Debate Continues

4:25 PM, Mar 30, 2012 • By ADAM J. WHITE
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Lithwick's coverage of this week's arguments has been colorful, to say the least. (Ramesh Ponnuru reviewed some of her mischaracterizations of the arguments this week, before observing—correctly—"Naturally, all of this is insane.") Still, even taking Lithwick at face value, it's hard to tell what legal arguments she was looking for. She certainly can't blame the justices spending too little time on prior precedents, given that the Supreme Court has never before decided a case in which Congress tried to impose a universal "mandate" through the Commerce Clause.  

But in any event, Lithwick's criticism is particularly ironic to those of us who remember Laurence Tribe's recent book, The Invisible Constitution—or, more specifically, Lithwick's review of Tribe's book. Tribe argued that much constitutional law is found not in the express text of the Constitution, or in the Supreme Court cases applying those words, but rather in the unstated values undergirding the text—or the principles so widely accepted that history presented no occasion for litigants to fight over them. They are "invisible" only because they are so well founded that there has been little need to point them out.

Tribe's argument might well be used to support liberal notions of a "living Constitution," but it is not an inherently liberal argument; far from it. Indeed, the same reasoning supported the Supreme Court's decision in Alden v. Maine (1996), which held that the Constitution does not abrogate a state's "sovereign immunity" against lawsuits brought by the state's own citizens.  

True, the Eleventh Amendment expressly provides such immunity against suits brought against a state by citizens of other states. But as the Court explained—in yet another majority opinion written by Justice Kennedy, incidentally—that state sovereign immunity was not simply a product of the Eleventh Amendment's text. "Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today ... except as altered by the plan of the Convention or certain constitutional Amendments."

In other words, the Constitution—from its very beginning—did not displace certain fundamental principles of law and liberty. And the fact that a structural principle has gone unchallenged in court for decades, if not centuries, should be evidence (but not conclusive evidence) in favor of its receiving express judicial protection. Sometimes the Constitution and precedents say it best when they say nothing at all.

Lithwick embraced this theory in 2008, when Tribe's book gave her another opportunity to complain about the Roberts Court—"a kick in the shin to 'textualism' and 'originalism,'" as she put it. In fact, she encouraged her readers—just weeks after President Obama's election, not coincidentally—to take Tribe's book as "a blueprint for reimagining the national constitutional conversation with fuller information about its complexities and internal tensions," an opportunity "to take the time to figure out what the founding document does rather than nitpicking about what it says."  

That is precisely what the justices did this week and will continue to do in weeks to come, as they draft, circulate, and edit their opinions. In the meantime, Lithwick ought to give it a shot, too.

Adam J. White is a lawyer in Washington, D.C. 

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