President Obama, Meet Justice Brandeis

We now know that our brilliant constitutional law professor president doesn't know anything about constitutional law.  This isn't just a matter of some loose remarks in the Rose Garden -- he is still wildly mis-citing cases in this area, displaying a profound ignorance of our constitutional history and of history generally.  Not the kind of kind person you would want "transforming" your country.

We all know that last Monday he said:

I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

Weirdly, on Wednesday, the president's press secretary asserted that the president did not say this -- although we've all seen the tape multiple times.  It was a strange thing for a law professor to say.

On Tuesday, in a weirdly passive, plodding, rehearsed-sounding tone (check the tape at 53:18 if you don't believe me), the president tried to limit what he said on Monday:

Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we're going back to the '30s, pre-New Deal.

Nope -- you got that wrong, Mr. P.  Lochner was a 1905 decision that did not deal with Congress's power under the Commerce Clause.  Lochner dealt with a state law (regulating hours of employment), and the Lochner Court found that there was a (since repudiated) substantive right in the 14th Amendment to contract, which New York's employment hours law abridged.  The Lochner decision was close -- 5-4.

In a famous dissent, Justice Holmes objected to the majority's decision, saying it was "decided upon an economic theory which a large part of the country does not entertain. ... [A] constitution is not intended to embody a particular economic theory."

You could conclude that the subsequent repudiation by the Court of Lochner stands for the proposition that there are no economic rights in the Constitution.  It's a leap from there to say that Congress (as opposed to the States) has no limits on its power regulate to the economy.  Although -- not for the president, for whom any "economic issue" is fair game.

Quite aside from the issue of individual liberty, the Court has consistently made a distinction between what a State can do and what Congress can.  The principle at stake is not individual liberty (which the repudiation of Lochner more or less dispensed with).  It is centralization.

In the Schecter Poultry case -- a unanimous decision handed down in 1935 -- the Court held FDR's National Industrial Recovery Act (which many perfectly reasonable people regard as proto-fascist) was "unconstitutional ... because it exceeds the power of Congress to regulate interstate commerce and invades the power reserved exclusively to the States."

With regard to this case, Justice Brandeis (who, by the way, is a liberal hero and a leader in the campaign to repudiate Lochner) famously told one of FDR's underlings, "This is the end of this business of centralization, and I want you to go back and tell the president that we're not going to let this government centralize everything."

During the period from 1936 to the present, and particularly in the period up to the end of the Warren Court, many Supreme Court decisions have eroded the anti-centralizing principle in Schecter.  That period coincided with the triumph of bigness -- mass production, mass transit, mass media, mass society.

Justice Brandeis hated bigness in his bones -- indeed, he wrote a book called The Curse of Bigness.  Perhaps that was the nostalgia of someone with deep personal attachments to the "smaller" world that preceded mass society.

But what the president doesn't understand -- what seems so fatuous when he speaks with contempt about the "failed ideas of the past" -- is that bigness was just another transient phenomenon.  That there are brute limits to how much wealth can be extracted by making everyone do the same thing.  By, for instance, making everyone buy the same health insurance.

We live in a society in which new information tools allow for the creation of wealth not through bigness, but through fine-tuning, inventory management, specialization.  Cramming this world into a mass-straight jacket will only produce disaster -- as it has already in the Soviet Union and North Korea.

There are subtler, more various, and better ways to solve our nation's (very obvious) health care crisis than by getting a bunch of bureaucrats and academics in a room in Washington and creating some heroic master solution.  Justice Brandeis again:

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

I would say, further, that solutions that work in, say, Massachusetts may not work in, say, Utah or Texas.  Hamlet: "There are more things in heaven and earth, Horatio, / Than are dreamt of in your philosophy."

So while the issue for Justice Kennedy may be "liberty," the deeper issue with this crazy piece of sausage we call ObamaCare is centralization.  It won't work.  And the Constitution anticipated a country in which federal solutions were limited.  In which the right to experiment in "things social and economic" was to a great extent reserved to the States.

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