Regulations are Unconstitutional? Conservative Legal Theories, and Re-Engaging at the Constitutional Level

Apologies for posting delays and failures, all necessitated by the ridiculous steps one must take, and time one must expend, to get into New York City this week.

Thomas Sowell, one of the National Review’s favorite legal commentators, comes up with a novel way to oppose the government’s new offer to pay for voluntary end-of-life consulting, aka, “death panels”: regulations are unconstitutional.

Republican congressman John Boehner, soon to become Speaker of the House, objected to this provision in 2009, saying: “This provision may start us down a treacherous path toward government-encouraged euthanasia.”

Whatever the merits or demerits of the proposed provision, the Constitution of the United States makes the elected representatives of “we the people” the ones authorized to make such decisions. But when proposals explicitly rejected by a vote in Congress are resurrected and stealthily made the law of the land by bureaucratic fiat, there has been an end-run around both the people and the Constitution.

Sowell’s slapdash legal rambling exemplifies the kind of polemic that substitutes for conservative legal theorizing these days. I don’t discount the large, educated, and influential schools of conservative legal thought led by true intellectuals, like Justice Scalia, but this, the conservative “constitutionalism” force-fed to the masses by the pundit class, is arguably more visible, and therefore more troubling.

This constitutionalism, ever-visible by its fetishization of the Constitution’s noble opening words, bears no actual relationship to reality — to Mr. Sowell, agencies may freely implement regulations within their broad authority (see Chevron v. NRDC; Schechter Poultry Corp. v. U.S.)  without regard to whether Congress debated reaching the same goal by legislation — but feeds on a lack of education, and provides its recipients with incorrect, but ultimately uncompromisable, reasons to oppose nearly everything the Democratic President and Congress strive to do. It’s an effective way to poison the political dialog, and whip up an unjustifiable fury.

Worse still, because this type of constitutionalism is unmoored from anything exceptpolitical exigency, we can expect it to change at a moment’s notice, as if the theory-of-the-moment that it replaced never existed.

This is a tough strategy to fight, but worse, it’s a fight we’ve largely abandoned. We can count on courts to sustain the progressive [subsitute: reality-based] view of the Constitution, but it’s up to us to educate the public on why we’re right, and our opponents distortionary hacks. Instead of avoiding constitutional fights in the public forum, we should embrace these opportunities. House Republicans plan to stage a stunt-reading of the Constitution at the start of the next House session; we should do the same. Kick off judicial confirmation hearings with a reading of the key parts of Marbury v. Madison (the full decision is, well, prohibitively long). Begin debates over detainee abuse/detention with Hamdi v. Rumsfeld, and Boumediene v. Bush. Interrupt debates over healthcare repeal (you know they’re coming) with McCullough v. Maryland. We’re heirs to a rich constitutional heritage that only begins with the document itself. “We the people” can’t be allowed to imagine it otherwise.



  1. I’m as great a fan of John Marshall as anyone, but I somehow doubt that readings of Court opinions will necessarily be the best path to take if you want to educate the public. It seems crazy, but there are lots of people out there who don’t really care much about such things.

  2. As a supporter of death panels and euthanasia, let me be the first to say… I think your proposal is vulnerable to misuse in that the case excerpts would likely be cherry-picked: skip the sounder dissent or the distinguished/overruled precedent, gloss over the facts of the case or the context it was decided in if they don’t support your political philosophy, quote dicta… A lot of our rich constitutional heritage is, in my opinion, bathwater and not baby, but encouraging people to invoke it in public debate just seems to me like it would be a recipe for abusing both baby and bathwater.

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