Further Thoughts on Insurance and CommerceMichael Ramsey

A reader sends these thoughts on Dan Coenen's article The Originalist Case for the Individual Mandate and my further comments:

It strikes me that Coenen does not define what he means by originalism (there are no citations to you, Jack [Balkin], [Mike] Rappaport, etc. about different modes of originalism).

The briefs of the challengers, and the tenor of arguments, really struck me as pragmatic/slippery slope arguments first, and originalist arguments as an afterthought. Randy [Barnett]'s unprecedented argument was premised on working within existing precedents from the New Deal, and not resorting to originalism.

At best, the challengers's briefs made some references to The Federalist, Blackstone, and "the Founders," "the Framers," "the Founding generation," etc. But I am not sure if this case, unlike Heller or McDonald, is really about originalism.

Also, do you think that citing a Marshall opinion or McCulloch or Gibbons v. Ogden is an originalist argument? This strikes me as a tough argument.

I'll take on the last point (since I agree with the others).  It's obviously a difficult question how far into post-ratification history one can go and still get useful information about the understandings of the founding era.  My view is that evidence from the McCulloch/Gibbons era (1819-1824)  is weak but not irrelevant.  Some of the key leaders of the founding were still alive at that point, as were many people who had known and been heavily influence by leaders of the founding.  Marshall himself was an important voice in the ratification debates, as well as in some of the early debates over implementing the Constitution.  Moreover, many of the constitutional issues resembled ones prominent in the founding era.  As with all post-ratification evidence, I would be careful to consider the post-ratification political and institutional biases of the speaker (for Marshall, as a moderate nationalist, anti-Jeffersonian and leader of the judiciary), and I'd discount the circa-1820 evidence even more for its relative remoteness from the founding.  But I don't see reasons for originalist inquiry to disregard it altogether -- that time (and especially people such as Marshall) still had material ties to the founding.

I do think that by the end of the 1830s the link to the founding was so thoroughly broken that evidence from that time would be questionable -- by then the founders were gone and the leading constitutional issues, especially expansion and slavery, were of a very different cast from the founding era.