If you pay attention to the expert analysis and the more general opining, you might think from either that the argument over the constitutionality of the Affordable Care Act, and the Supreme Court’s 5-4 decision upholding it, hast to do with the Commerce Clause and taxation. This thinking represents two kinds of pretense. The first, common pretense is that lay people hold opinions on the matter based upon their reading of the Constitution and on a coherent conception of it as a whole, and of the Commerce Clause’s place in that whole. This is nonsense. Most people derive their opinion on such policy disputes from their existing political dispositions. If you are a liberal, you support the ACA because you believe in the idea of government as the functional expression of the common social good. If you are a conservative – well, we’ll get to that.
The second, uncommon pretense – that of the legally expert – has an overlay of genuine knowledge. The Constitutional expert knows the history of Commerce Clause jurisprudence and opinion and develops an informed opinion derived therefrom. Just coincidentally (see pretense one) this informed opinion mostly coincides with the legal expert’s political disposition, which authors the unavoidable suspicion that there is both a first class berth and a coach seat to a common destination: what one wants to believe about the Constitution because of what one already believes about the world.
This recognition is not so startling or new, but there is one to be made behind it, and I was reminded of it by another recent Supreme Court decision, the vote striking down the Stolen Valor Act. Recall that the conservative position regarding the ACA, as most essentially expressed in the minority opinion, is that
If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.’ [Emphasis added]
You may read here how the quote from Hamilton is both a misapplication to the Commerce Clause and a misrepresentation of Hamilton’s intent in the words, but that is not my point. My point rests in the quintessential expression of conservative fear of unlimited federal power.
Now here is Stanley Fish’s recent consideration, in part, of the Stolen Valor decision.
Convicted under the statute, Alvarez appealed, arguing that his First Amendment rights were violated when he was prosecuted for knowingly making a false statement. The plurality opinion (written by Justice Anthony Kennedy) agrees, declaring that the category of exceptions to the First Amendment’s general protection of speech does not include false statements. The supporting citation is to New York Times v. Sullivan (1964), in which it is said that because false statements are inevitable in public debate, they must be protected “if there is to be an open and vigorous expression of views.”
Kennedy also points out that in those instances (perjury, fraud, defamation) in which false statements have been criminalized, the statements are part and parcel of a “legally cognizable harm.” In the case of stolen valor, however, there is, Kennedy avers, no such harm; the statute “targets falsity and nothing more” and therefore could be extended to false statements “made to any person, at any time, in any context,” including “personal whispered conversations within a home.”
In response, Justice Samuel Alito, writing for the dissent, insists that the false statement in question — the claim to be a Medal of Honor recipient — does “inflict real harm” and serves “no legitimate interest.” Furthermore, despite what the plurality contends, the act is specific in its potential application and “does not reach dramatic performances, satire, parody, hyperbole, or the like.” As for the harm, it is, according to Alito, calculable and irreversible: “[T]he proliferation of false claims about military awards blurs the signal given out by the actual awards … and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps.” The damage, Alito adds, is to “the very integrity of the military awards system.”
Alito knows that the word “system” pinpoints the difference between his viewpoint and the plurality’s. A systemic harm is one that is inflicted not on a targeted individual, but on the social context in which all individuals necessarily operate. It is, Alito says, a “societal harm” measured not by the documented “specific harm” Kennedy requires, but by the damage done to the fabric of a culture. Nor is it a harm that can be remedied by the revelation and dissemination of the truth, “by what the plurality calls ‘counterspeech.’” Counterspeech, Alito explains, produces a “steady stream of stories in the media about … imposters,” that would “only exacerbate the harm … the Stolen Valor Act is meant to prevent.”
Fish considers this opinion in the context of a two previous controversial commentaries about Jeremy Waldron’s book The Harm in Hate Speech. You will note the occurrence in the book’s title of one of the words I bolded in the quotation above: “societal harm.” Waldron makes the case for legal prohibitions against certain forms of hate speech. Though the idea is reminiscent of the PC language policing culture that arose on the left in the 90s, it here takes on an essentially conservative color – and offers that second revelation. Liberals have a conception of the social good and they want the federal government to act positively to promote and create it. Conservatives, too, have a vision of a common, social good. It generally manifests in just such conceptions of individual behavior – here lying, but in other, historical and current instances, various kinds of “lifestyle” acts or personal choice (of which lying that causes no specific harm may be considered an extreme example) – that conservatives think the source of, in Alito’s words, “societal harm.”
What broader standard – what more “elastic” Commerce Clause proving “a font of unlimited power” – can we conceive than a notion of general ‘societal harm”? Liberals seek to expand federal reach in the direction of their social good through enactment. Conservatives, always negatively, attempt to achieve their social good by restriction that deters what they think is bad for us. In one instance, the argument centers on the Commerce Clause, in another, First Amendment free speech rights. But Alito, and Scalia and Thomas, who voted with him, contradictorily in both cases, were not really following the historic course of the Commerce Clause and the expanded powers it grants the federal government. They are arguing rather about where and to what, and for whom, the power is directed. It is a kind of political qi, and the fight is all and always over who gets to have it.
- Hate Speech and Stolen Valor (opinionator.blogs.nytimes.com)
- How Scalia Distorts the Framers (consortiumnews.com)
- Roberts’ Rules (talkingpointsmemo.com)
- Epistemic closure at the Supreme Court (obsidianwings.blogs.com)
- Pride of a Partisan (sadredearth.com)
- Mourning In America (sadredearth.com)
- How Fast, So Furious, the Grim-faced Libertarian Falls in the Forest (sadredearth.com)
- Is Chris Hayes Too Thoughtful for the Mediated Public Square? (sadredearth.com)
- Framing Obama (sadredearth.com)