In my draft article, Five Lessons from the Health Care Cases, I queried what is the significance of the fact that in NFIB v. Sebelius, the cahllengers did not primarily advance an originalist argument, though the outcome of the case moved the Constitution closer to its original meaning. I had trouble reconciling the two concepts. Though, after attending the Federalist Society convention this weekend, and chatting at length with Randy Barnett, I’ll offer a very cosmic constitutional theory (my apologies to Judge Wilkinson).
A brief astronomy lesson. In our solar system, 9 planets orbit around the Sun. The gravitational pull of our nearest star star keeps the planet in orbit. But, gravity goes both ways (grossly oversimplifying). Our planet exerts a pull, however small, on our star. To the extent that the planet exerts a pull on the star, the star will wobble a bit towards the planet. This principle of physics has enabled astronomers to locate planets outside of our solar system (extrasolar planets). Astronomers are only able to detect extrasolar planets–which are too small to be visible even with advanced telescopes–by measuring shifts in the movement of stars. If a star “wobbles, ” that is a sign that a planet’s gravitational forces is pulling on it.
In our jurisprudential solar system, think of a star as our Constitution. Various planets that orbit the star represent different constitutional theories (now I’m just having fun with Judge Wilkinson). The strength of the theory can be viewed as a function of the gravitational pull the planet places on the star. If a theory has some pull on the star, even if the theory is not that close to the star itself, it still has some influence.
Let me explain in the context of originalism.
As Randy Barnett noted, there are three views of federalism (and I would add, relatedly, federalism’s structural protection of individual liberty, see Bond).
First, there is the pre-1937 originalist view, where the Court, unbound by modern precedents, rules in accordance with the original public meaning of the Constitution. Second, there is the New Deal-era view of federalism, wherein Congress has a plenary police power to do whatever it deems necessary, and any law that fills within the New Deal’s ambit will be upheld. Third, there is the New Federalism of the Rehnquist Court. This third strand can be best characterized as “this far, but no farther.” In other words, the New Federalism did not repudiate the New Deal view of federalism, nor did it effect a return to the pre-1937 view of Federalism. Rather, it asserted that if the federal government seeks to assert a power that goes beyond what had already been upheld, it must justify that extension of an unprecedented assertion of power. Now, the Court would not adjudge the constitutionality of the new law purely based on originalism, but instead based on what Chief Justice Rehnquist referred to as “first principles” in Lopez. It is noteworthy that Justice Thomas’s originalist opinion in Lopez was not joined by Justice Scalia (same for Morrison).
This tripartite taxonomy helps to explain why originalism has, and has not been successful in recent cases.
Perhaps the best examples in the first category are Heller in McDonald. In these cases, the Court was largely writing on a blank slate. The Court was in no way bound by any sort of New Deal compromise, as the precedential slate is clear. Thus, the Court was free to receive, and did apply originalist arguments. In fact, both the majority and dissent in Heller and McDonald advanced originalist arguments.
For decades, until Lopez and Morrison and other Rehnquist era precedents, the Supreme Court was steadfastly locked in the second zone of the New Deal-era view of Federalism. In the words of Larry Solum, the gestalt had crystalized.
However, what helped to break federalism free from its Roosevelt-imposed chrysalis? I would suggest originalism. Originalist scholarship began to emerge in the 1970s and 1980s that showed that the Court had departed from the original understanding of the Constitution in the New Deal cases, particularly with respect to federalism and structural protections of individual liberty. These cases exerted a pull on the Court’s jurisprudence ever so subtle at first, but soon enough the law, like a star being attracted to a planet, began to wobble. Progressives observed this wobble, worried, and hoped that the Constitution would remain in the sole-pull of the New Deal. Cases like New York v. United States, United States v. Lopez, Printz v. United States, United States v. Morrison, Seminole Tribe v. Florida and others are collectively dubbed part of the “New Federalism.” None of these cases were argued in terms of restoring the original meaning of the Constitution. The advocates didn’t need to. It was sufficient for the Justices to know that errors were made, those errors would not be fixed (in Justice Scalia’s words, they were “water over the dam”), but that the court should go no further from the Constitution’s original meaning without a sufficient justification from the government.
What does gravitational force mean?
The phrase 'gravitational force' means (physics) the force of attraction between all masses in the universe; especially the attraction of the earth's mass for bodies near its surface.