Anthem Blue Cross: Not So Greedy After All

Cross-posted from Critical Condition on National Review Online.

Last month, it came out that Anthem Blue Cross, California’s largest for-profit health-insurance company, was planning to raise health-plan premiums this year by as much as 39 percent. The White House seized on the news to pillory health insurers and claim that the need for Obamacare was greater than ever.

Health and Human Services Secretary Kathleen Sebelius said she was “very disturbed” by the increases, and accused the company of cruelty and greed: “These extraordinary increases are up to 15 times faster than inflation and threaten to make health care unaffordable for hundreds of thousands of Californians, many of whom are already struggling to make ends meet in a difficult economy. [Anthem’s] strong financial position makes these rate increases even more difficult to understand.” Congress called hearings. Even California Insurance Commissioner Steve Poizner, a Republican running for governor, decided to launch an investigation.

Today, Anthem’s parent, Wellpoint Inc., held a conference call with investors to discuss its 2010 financial outlook. On the call, they said that because of lower revenues and higher expenditures on patient care, and despite lower administrative costs, they would earn 11 percent less in 2010 than in 2009.

To be specific: Wellpoint projected a 3 percent decline in operating revenue; a 0.7 percent increase in the percentage of premiums to be spent on patient care (from 82.6 percent to 83.3 percent); administrative costs of 14.4 percent (down from 15.9 percent in 2009); and profit margins of 4.4 percent (down from 4.8 percent). And their margins are only that good if the proposed rate increases, that have been so ardently criticized, go through.

What Wellpoint’s disclosures demonstrate is that the rate increases they are seeking are not a result of ruthlessness, but of rising health-care costs. They must pass the majority of these costs on to policyholders, or the company will lose money. Unfortunately, the biggest cause of rising health-care costs is poorly conceived government policy, a problem that Obamacare will accelerate.

I Have Resurfaced!

Okay, so my last apology was insincere, but I really mean it this time.

So, here is the story of why this blog, after a brief but energetic start, went nowhere.

In April, I took a job as a healthcare equity research analyst at Monness, Crespi, Hardt & Co., where my views on healthcare stocks are available to paying clients of the firm. Given that I was just starting up, I felt it necessary to focus all of my energies on getting up and running at MCH.

Now that I am up and running at work, and now that Obamacare is the law of the land, it is more important than ever that Americans involve themselves in the debate about healthcare policy.

I have been fortunate to find two first-rate platforms for my thoughts on healthcare: National Affairs, where I have published a 6,526-word thought piece on "Health Care and the Profit Motive" in the Spring 2010 issue; and Critical Condition, the healthcare blog of National Review Online. I owe a great debt to Yuval Levin, editor of National Affairs; and Rich Lowry, editor of National Review, for what they do to improve my work.

My plan for the foreseeable future is to write long-form articles for journals like National Affairs, supplemented with daily thoughts at National Review Online. I will link to all such entries at this site, so you can track my writings either by visiting here or via my RSS feed and/or Twitter.

I have noticed a few out-of-date links around the site, and I will correct those posthaste. I want to assure my handful of readers that this blog is back.

One housekeeping matter: as I am a registered securities analyst, licensed by the U.S. Financial Industry Regulatory Authority (FINRA), I will not be making recommendations to buy or sell securities on this blog, or in any other forum, unless it is expressly provided for in the policies of FINRA and the U.S. Securities and Exchange Commission. My intent is to focus my public writings on the public interest, irrespective of what I think of healthcare stocks. I don't seek any compensation for my policy writings.

Thanks for your patience, and I look forward to your future comments.

Sorry, But When I Said “Vast” I Really Meant Vast

Cross-posted from @TAC.

Dismissing as “balderdash and poppycock” my claim that “government planning makes sprawl ubiquitous,” Randal O’Toole of the libertarian Cato Institute* admonishes me and other sprawl critics to “get their noses out of [James Howard] Kunstler‘s biased diatribes.” My nose now lifted, I cannot see how O’Toole has even rebutted my post, much less exposed it as “balderdash,” not to mention “poppycock.” O’Toole quotes me as saying that sprawl is “mandated by a vast and seemingly intractable network of government regulations, from zoning laws and building codes to street design regulations.” That vast network includes but is not limited to:

• Physical destruction of cities through urban renewal projects, public housing and highways;


• Massive government spending on highway building;


• Subsidizing of new home construction by government-sponsored entities;


• Tax law benefits of home ownership;


• The interstate highway system;


• Minimum parking space requirements;


• Traffic engineering and road construction codes that make it unlawful to make pedestrian-friendly streets;


• Land use codes, including minimum setbacks;


• Minimum lot zoning; and


• “Euclidean” zoning that segregates residential, commercial and industrial uses.

(See Michael Lewyn’s work, to which O’Toole himself has linked.) In response, O’Toole addresses only one of these policies, namely, Euclidean zoning. Developers, he argues, generally have no trouble getting zones reclassified. Hence, Euclidean zoning operates in practice as a licensing regime rather than a flat prohibition on varying land uses. Licensing regimes, of course, restrict supply by definition. At most, therefore, O’Toole has shown only that Euclidean zoning does not prevent mixed use development as much as commonly supposed.

But so what? Let’s concede the Euclidean zoning does not cause sprawl; let’s even concede (as seems unlikely) that it has no actual effect on land use whatsoever. Euclidean zoning is still just one set of strands in the vast network of laws mandating sprawl. To produce the opposite of sprawl — that is, the walkable neighborhood — the government needs to let developers do a lot more than just mix uses. Jane Jacobs identified the features of a functioning urban neighborhood fifty years ago: in addition to mixed uses, you need (at a minimum) short blocks, narrow streets, and a facade enclosure creating a legible public space. As an example, here’s a on old picture of Crown Street, an undistinguished street in New Haven (taken before New Haven was physically destroyed by I-95 and urban renewal). Many people would pay dearly to live near a street like that today — if it were allowed to be built.

Yet most jurisdictions in the United States make it illegal to build anything like Crown Street. O’Toole cites Houston, which has no formal zoning but is notoriously sprawling, as proof that central planning does not cause sprawl. Houston, however, requires streets to be at least twice as wide as Crown Street, blocks to be many times longer, lots to be several times bigger, and all buildings to provide free parking spaces. Worst of all, Houston requires all buildings to be set back at least 25 feet from the street, thereby making a facade enclosure impossible and all but guaranteeing that Houston will consist of a wasteland of parking lots. Houston is in reality a textbook case of how government mandates sprawl. As I noted a week before O’Toole’s reply to my original post, sprawl is legally over-determined. That is, any number of government policies — of which Houston, even without formal zoning, has several — in themselves are enough to produce sprawl.

And O’Toole knows it. He concedes that “Houston regulates such things as setbacks and building heights,” yet he somehow thinks it matters that “you can build a 7-Eleven in the middle of single-family homes.” Ye gad, nobody wants to live next to an asphalt-girdled 7 Eleven! The only commercial development allowed in Houston is strip mall centers where no pedestrian would ever go. Hence, Houston residents have no choice but to locate as far away from commercial development as they can possibly afford. O’Toole quotes approvingly John Stossel’s claim that sprawl opponents want to prevent poor people from having a back yard. That is not actually true, whatever Kunstler might have said, but in any case O’Toole leaves unmentioned that sprawl defenders want to force everyone to have a car (or multiple cars). The expense of keeping a car is an indirect tax that hits the poor the hardest.

Just to be clear, I am not arguing everyone should live in traditional neighborhoods, any more than that everyone should live in sprawling subdivisions. I have no objection to Europeans moving into sprawling areas — provided that their governments are truly giving them the choice (I wouldn’t know). Many sprawl critics have environmentalist, aesthetic, or even geo-strategic reasons for opposing sprawl. I oppose it simply because I believe Americans other than SWPLs and the super-rich should have a choice of something else. Free market defenders of sprawl, if Randal O’Toole is any indication, have not shown that they do.

UPDATE: A friend writes: “To any discussion of sprawl and planning in Houston I would add the concept of frontage roads. These are what we would call service roads in and around NY. They were required on all freeway construction with certain recent exceptions (Hardy Toll Road, etc.) The freeway builders in Houston wanted to encourage commercial strip development along the freeways. The inspiration was supposedly the L.I.E in Flushing, Queens. I highly recommend Erik Slotboom’s ‘Houston Freeways.’ http://www.houstonfreeways.com/”

I second the recommendation. Behold the mighty works of the free market! Look on these freeways, Socialists, and despair!

* Ironically, I was first persuaded of the libertarian case against sprawl at a Cato Institute event in the mid-1990s featuring former Milwaukee mayor John Norquist.

Sprawling Misconceptions

Cross-posted from @TAC.

James Howard Kunstler doesn’t think highly of libertarian newsman John Stossel. Assuming this is what Kunstler is talking about (see No. 2), you can’t blame him. Stossel defends suburban sprawl and accuses its opponents — like Kunstler — of forcing lifestyle choices onto others “by limiting where they can build.” The fallacy of this view has been pointed out about 100 times. For the 101st time: sprawl — an umbrella term for the pattern of development seen virtually everywhere in the United States — is not caused by the free market. It is, rather, mandated by a vast and seemingly intractable network of government regulations, from zoning laws and building codes to street design regulations. If Stossel wants to expand Americans’ lifestyle choices, he should attack the very thing he was defending, namely, suburban sprawl.

It’s odd that self-described libertarians such as Stossel are so slow to grasp that government planning makes sprawl ubiquitous. You would think that libertarians would instinctively grasp the deeply statist nature of suburban development. First of all, with a depressingly few exceptions, virtually every town in America looks the same. That is, it has the same landscape of arterial roads, strip malls, and residential subdivisions, accessibly only by car. Surely, given America’s celebrated diversity, you would also see a diversity of places. As it turns out, all but a few people live the same suburban lifestyle. Government, as libertarian assumptions would predict, is the culprit.

Second, the few places in America that have a distinctive character are also exceedingly expensive. John Stossel himself admits to living in an apartment and walking to work most days. Now, I don’t know where exactly Mr. Stossel lives, but it sounds as if he lives in Manhattan, where residential space costs over $1000 a square foot (that means a two-bedroom apartment where a family of four could fit costs at least $1.5 million). If Mr. Stossel’s lifestyle, as he puts it, is less popular than the suburban lifestyle, then why does his cost so much more? He apparently never asks himself the question. Had he done so, he might have discovered that government artificially restricts the supply of Manhattan-like places but artificially increases the supply of sprawl. That’s the reason Americans “prefer” to live in the suburbs. They don’t have a choice.

Original Sinner

Cross-posted from TakiMag.

There isn’t much to say in response to Kevin Gutzman’s latest.  He’s had two chances already but still hasn’t addressed my core contentions, namely (to repeat myself)

(i) “The Constitution as written contains barely any restrictions on the power of the Federal government to intrude upon the states” and

(ii) Gutzman can’t satisfactorily “answer the question: why should we follow the Constitution anyway?” 

At least now he helpfully explains why he won’t rebut me.First, to my argument that the Fourteenth Amendment gives Congress virtually unlimited powers, Gutzman replies:

I do not waste my time scouting out all of the idiosyncratic justifications for unlimited power, from Caligula to the present. They have contributed nothing to civilization.

In other words, Gutzman refuses even to consider whether the Constitution might not be the libertarian document that he takes it to be. The Constitution simply must limit the powers of the Federal government! Yet somehow, I know not how, Gutzman tirelessly flays his opponents for allegedly subordinating the Constitution to their desired policy outcomes. Ye gad, if there’s anyone in this world who can’t separate his ideology from his interpretation of the Constitution, it’s Kevin Gutzman. Not only, by his own admission, does he reject any reading of the Constitution that doesn’t support his libertarianism, but he writes that I don’t care about “limitations on government authority,” even though I argued only that the Constitution doesn’t impose those limitations, and even though I pledged allegiance to the cause of limited government in both my posts. Gutzman evidently can’t even imagine how anyone could read the Constitution except as support for his ideology. Gutzman is more Brennanist that William Brennan himself.

Anyway, I confess that I don’t find Gutzman’s excuse for not addressing my arguments very credible. Nobody is asking Gutzman to do any “scouting”—all my arguments are sketched out in my posts for him to read. As for wasting Gutzman’s time, he has plenty of it to abuse me at length for having graduated from law school. Could he not have devoted just of bit of the time he has spent attacking me to responding to my actual arguments? Either Gutzman has a rather unscholarly set of priorities or he’s just being disingenuous.

Second, Gutzman continues to insist that his approach to the Constitution follows from the principle of self-government. I noted before that Lysander Spooner has decisively refuted this view. Gutzman now proudly reminds us that knows all about Lysander Spooner already. I’m glad—but will Gutzman do his readers the favor of explaining why he disagrees with Spooner? By no means! Instead, he proclaims, “I have little to say about constitutions to someone [i.e., me] who [doesn’t care] about the consent of the governed.” In other words, Gutzman won’t address any arguments coming from me, even when they’re not even mine, and even when they were devised by a thinker (Spooner) whom Gutzman admires. The name Bramwell has so defiled the sacred purity of Gutzman’s libertarianism as to render him speechless with pious indignation. Perhaps when I’m not around to blaspheme, Gutzman will regain his tongue and explain how he proposes to reconcile his belief in written constitutions with his faith in self-government. I only regret that I won’t be there to witness his performance. I suspect it would be quite entertaining.

Lastly, I have argued that Gutzman’s method of interpreting the Constitution—which favors subjective expectations over the actual text—is flawed. I offered, oh, six or seven objections to intentionalism, each one of which may be taken as fatal. Gutzman’s response is, frankly, puerile: He addresses one objection—namely, that it’s unclear whose intentions we should consult—announces that he’s not going to bother with the others (yet refers his readers to no authority on the subject whatsoever), and then exults at having vindicated intentionalism. I’m sorry, but that just won’t do. 

For one thing, Gutzman doesn’t even successfully answer the “whose intentions?” objection.In his view, the only intentions to be consulted are those of the people’s representatives at the state conventions that ratified the Constitution. This argument is presumably based on the actual text of the Constitution, which specifies in Article VII how the Constitution was to be adopted. If it’s the text that controls whose intentions count, however, then why in all other circumstances must intentions control the text? Gutzman’s appeal to the text to define the role of intention is incoherent. Moreover, as I noted already, the Preamble states that the Constitution was adopted by “We the People.” That bit of text suggests we should consult not just the intentions of the people’s representatives at the state ratification conventions but the intentions of the people themselves—namely, all individuals around at the time of ratification, if not all individuals who have ever been governed by the Constitution. 

Even if Gutzman can successfully define the class of relevant intentions, he still has to run a gauntlet of five or six more objections to intentionalism. Indeed, the “whose intentions?” objection is probably the easiest one to dispose of. Somehow I don’t think Gutzman is up to solving the problem of, say, generality or aggregation. No other intentionalist, to my knowledge, ever has.

The rest of Gutzman’s reply is peppered with the same sort of shameless misrepresentations that, sadly, one comes to expect of his writings. I did not say, for example, that “the Fourteenth Amendment has no meaning”; I actually said that “the meaning of the Fourteenth Amendment is clear.” I did not say that arguments for unlimited power are “worth inventing”; I said, “I am not a devotee of unlimited government.” I did not offer “Brennan-Tribe-Douglas-like excuses for rejecting originalism”; I explained that only by rejecting Gutzman’s intentionalism can one “save originalism” and “fix permanently the proper interpretation of the Constitution.” Gutzman has made no effort to understand my arguments.  Instead, he has flatly denied, again and again, that I ever wrote what I wrote—even though it’s all there in the record for any reader to consult.

Gutzman doesn’t want to argue with me. Very well. I regret having wasted his time, and mine.

Addendum 1: Gutzman disagrees with my reading of McCulloch. His reading (which he supports not with citations to Marshall’s opinion but to secondary authorities) is a common one, though one I believe to be mistaken. I am happy to discuss the subject further sometime, preferably with an interlocutor willing to argue in good faith. In the meantime, the proper reading of McColluch is only incidental to my argument that Congress’s powers under the Fourteenth Amendment are virtually unlimited.

Addendum 2: Gutzman now admits that the Supreme Court has not always been guided by the slogan, “evolving standards of decency.” He is unimpressed that I would point this out, since it is so obvious. If it is so obvious, however, then he should have qualified his earlier claims about Supreme Court decision-making. Even now, he says that Supreme Court justices have in many cases “been guided only by their whims.” Only by their whims? One has to point out the obvious, when arguing with a fanatic. Otherwise, he’ll continue to state positions that are laughably overblown.

Best of Intentions

Cross-posted from Takimag.

I’m sorry, but Kevin Gutzman is still totally wrong about the Constitution. His response to my article sends up a flurry of errors and misconceptions but leaves my critique of his work not only undisturbed but unaddressed. I am glad to set him straight point by point.

1. “[P]roducts of law school miseducation like Bramwell,” are “subjected to reading in ‘constitutional law,’ the body of case law purporting to implement the U.S. Constitution,” which results in “indoctrination” in the “bipartisan consensus that the Federal Government is really an unbounded national government.” I’ll leave aside whether teaching an actual body of law amounts to “indoctrination.”  Contrary to Gutzman, the interpretations I offered of the Constitution are not only inconsistent but positively at loggerheads with contemporary constitutional law. If anything, they should have elicited a big fat “WTF?” from anyone who actually knows any con law. For one thing, I argue that Congress’s enforcement powers under the Fourteenth Amendment are virtually unlimited, despite that the Supreme Court has held that they are virtually non-existent.  See City of Boerne v. Flores (1997).  (I probably have the most extreme view of the original meaning of the Enforcement Clause of the Fourteenth Amendment of anyone in the United States.)

For another, I may be the only person ever to argue that the Thirteenth and Fourteenth Amendments ratified post facto John Marshall’s decision in McCulloch v. Maryland. Yes, dear Takimag reader: you were subjected to an argument so bizarre and outlandish that it has appeared only once before in print, and that was in an article by me for Critical Review. Nevertheless, Gutzman warns that I am regurgitating the same nonsense I learned in law school.  Fine, I’ll make him a bet: I will bet him $1,000 that in the span of, say, one year, Gutzman can’t find a single law school graduate in the United States who was taught in class my ultra-expansive theory of Congress’s powers under the Fourteenth Amendment and my theory of Enforcement Clauses / Necessary and Proper Clause interraction.  If Gutzman wants to take me up on this bet, he should let me know and we can work out the terms.

2. Supreme Court justices have “felt free to impose their own ever-evolving views of the ‘evolving standards of decency’ in a maturing society.” For the record, the phrase “evolving standards of decency” shows up in only one line of cases, namely, those interpreting the Eighth Amendment prohibition on cruel and unusual punishment. It appears, according to Westlaw, in a total of 59 Supreme Court opinions. How about the phrase “enumerated powers,” so beloved of libertarians, and which no more appears in the actual Constitution than “evolving standards of decency”? It shows up in 116 cases, including more than 60 since the New Deal revolution. That doesn’t prove that the Supreme Court has interpreted the Constitution as a libertarian document. It does show (however crudely) that constitutional law no more embodies pure Brennanism than it does libertarianism. Indignation at Supreme Court opinions is certainly called for at times.  But that doesn’t excuse exaggerating what those times are. “Evolving standards of decency” is not the touchstone of all Supreme Court decision-making.

3. Gutzman’s approach to the Constitution follows from the principle of “government by consent of the governed.” No, it does not. Lysander Spooner decisively refuted 140 years ago the idea that the people ever consented to the Constitution. First, nobody ever performed an act to manifest his consent. Only a few dozen drafters ended up actually signing the Constitution, and that was only to submit an official version to the states. Nobody else in America was so much as asked whether he even agreed with it. Instead, the Constitution was adopted in accordance with its own self-executing ratification provisions—which is another way of saying that, if you didn’t like it, then tough. Although members of State ratification conventions did formally ratify the Constitution, they acted not in their individual capacities but only as representatives. (And of course, many of those representatives voted against the Constitution.) As for everyone else, though some did have the privilege of voting for their representatives, exercising a right to vote is by no means equivalent to approving an election’s outcome, much less consenting to what one’s representatives do in office. Finally, of course, women, non-whites and the unpropertied were excluded from the franchise altogether. Rather than say that the people consented to the Constitution in 1789, it would be more accurate to say that a handful of men foisted it on everyone else. 

Even if the people did somehow consent to the Constitution in 1789, later generations have never had the chance to do so. They are subjected to the Constitution as arbitrarily as citizens of other nations are subjected to hereditary monarchy. These days, probably only a minority of Americans would consent to the Constitution as written. Only a tiny fraction, needless to say, would consent to the Constitution as interpreted by Gutzman. Yet Gutzman appeals to consent of the governed! Verily, if it’s the consent of the governed that Gutzman wants, the last thing he should be championing is the United States Constitution. 

Anyway, who cares whether the people consent to their government? The people could consent to a viciously unjust government or one inimical to their well-being. Far more important than whether the people are governed by consent is whether they are governed well. Any other position must assume a nihilistic denial of any such thing as a public good. By appealing to the principle of self-government as it were self-evidently laudable, Gutzman has unwittingly revealed that he has no compelling justification for following the Constitution.

4. McCulloch v. Maryland “held ... that the Necessary and Proper Clause gave the Congress very wide legislative powers.” This misstates the holding of McCulloch.  Read Marshall’s opinion carefully:  Marshall didn’t think the Necessary and Proper Clause was needed to establish that Congress could create a bank. Rather, he argued that Congress had this power by implication under the Tax and Spending Clause. The Necessary and Proper Clause merely underscores that Congress has powers implied from its specifically enumerated powers. The Necessary and Proper Clause, for Marshall, does no additional work.

5. Bramwell “cit[es] McCulloch v. Maryland on behalf of the idea that the Constitution created a Congress with virtually unlimited powers.” No, I do not. I cite no case for this proposition but rather the actual text of the Constitution—specifically, the Enforcement Clause of the Fourteenth Amendment. McCulloch is only relevant insofar as it provides evidence of the original public meaning of this Enforcement Clause. In addition, I argue that, whether or not McCulloch was correctly decided, by 1865 it had been ratified as correct. I don’t see how I could have been more clear on this point. I wrote, “For better or worse, the dispute of the original meaning of [the Necessary and Proper Clause] is now largely irrelevant,” for “the actual Constitution incorporates [McCulloch‘s understanding of Congress’s implied powers].” 

In response, Gutzman treats me to a lengthy history lesson on how Marshall got it all wrong back in 1819. Whether Marshall did so or not, however, is irrelevant to my argument.  Just for the fun of it, I’ll even concede Gutzman’s attack on John Marshall and take it further: McCulloch is the worst decision in the history of the Supreme Court. Nevertheless, McCulloch, by operation by subsequent Amendments, still represents the correct interpretation today of Congress’s implied powers and the Necessary and Proper Clause.

6. The distinction between the meaning of a provision and the intentions of those who wrote and ratified it “is a common distinction among lawyers who want to concede unlimited authority to some instrumentality, agency or branch of government.” No, it is not. The disctinction was introduced by originalists in order to save originalism and thereby help to defend the view that the Constitution limits the powers of the Federal government. For example, Antonin Scalia:

It is the law that governs, not the intent of the lawgiver. ... Men may intend what they will, but it is only the laws that they enact which bind us.

Robert Bork:

[W]hat the ratifiers understood themselves to be enacting must be taken to be what the public at that time would have understood those words to mean. It is important to be clear about this. The search is not for subjective intention.

Contemporary libertarian originalists such as Gary Lawson and Randy Barnett likewise endorse the disctinction. To be sure, Gutzman, as I have noticed, is rather promiscuous in leveling the charge of lack of fidelity to the Constitution, so perhaps he would denounce Scalia, Bork, Lawson, and Barnett as all big government Constitution-haters. Nevertheless, the direction in which Lawson and Barnett and, to a large extent, Scalia hope to lead constitutional law is towards limiting the powers of the Federal government. I happen to disagree with them that original meaning saves the cause of limited government. Still, it has undeniably become the favored constitutional theory among libertarians today. Gutzman overlooks this history, or simply doesn’t know it.

7. “A provision’s meaning,” say the advocates of the distinction between meaning and intention, “changes from to time as the society ... becomes more enlightened.” Wrong. Libertarian judges and scholars have favored meaning over intention precisely because they hope to fix permanently the proper interpretation of the Constitution. Thus, Scalia writes in the very same essay in which he denounces original intent: “If the Courts are free to write the Constitution anew, they will, by God, write it the way the majority wants ... This is, of course, the end of the Bill of Rights, whose meaning will be commited to the very body it was meant to protect against: the majority.” Randy Barnett, another critic of intentionalism, argues that the Constitution can only have legitimacy if its meaning is “locked in.” The distinction was invented, in short, to bind judges to an unmalleable Constitution.

8. Thomas Jefferson wrote that the federal Constitution should be enforced “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends.” Indeed, Jefferson wrote this, but it by no means implies that we should interpretation the Constitution according to anyone’s original intent.  Obeying Jefferson’s injunction, let us see how the Constitution’s “friends” actually thought the Constitution should be interpreted. 

Start with Alexander Hamilton:

The Secretary of State [i.e., Thomas Jefferson] will not deny, that, whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. [A]rguments drawn from extrinsic circumstances, regarding the intention of the [constitutional] convention, must be rejected.

In other words, says Hamilton, pointing to an area of common agreement with Jefferson, one must not consult the particular expectations of the men who wrote the Constitution. I realize Gutzman probably thinks Hamilton is an evil statist. Still, as the author of many of the Federalist Papers, he surely ranks as a “friend” of the Constitution. Or, if Gutzman won’t take Hamilton, here is James Madison, as his remarks are recorded in the Annals of Congress:

When the members of the floor, who were members of the General Convention ... were called on in a former debate for the sense of that body for the Constitutional question [at issue], it was a matter of some surprise [for Madison]. ... [A]fter all [in Madison’s view] whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.

Or Madison again:

As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.

In other words, the two greatest of the Framers—Hamilton and Madison—did not believe that, in interpreting the Constitution, one should look into the intention of those who wrote it. On the contrary, they specifically admonished us not to do so. Gutzman is thus trapped in a contradiction: he says we should follow the original intent of the Framers, but the original intent of the framers was that their various intents should be ignored! This point was made back in 1985 by H. Jefferson Powell. Perhaps Powell is just another evil law professor out to traduce the Constitution. Nevertheless, it is suprising that Gutzman did not anticipate this well-known objection.

9. “A provision’s meaning” should be equated “with the intention of its enactors.” Frankly, I can’t tell what exactly Gutzman thinks the relationship between a provision’s meaning and the intentions of those who wrote it really is. “The equation,” as Gutzman puts it “of a provision’s meaning with the intentions of its enactors” is harmless if all that “equation” implies is that one must look no further than the text of a provision to ascertain the intentions of those who enacted it. Plainly, however, Gutzman wants intentions to do independent work. He argues, for example, that John Marshall’s interpretation of Congress’s implied powers is mistaken because many states would never have ratified the Constitution had their representatives expected that Congress’s powers would be so liberally construed. In short, Gutzman thinks subjective expectations can determine the meaning of the Constitution’s actual words. 

For reasons Madison, Hamilton and possibly even Jefferson anticipated, Gutzman’s appeal to subjective expectations is unpersuasive. The problems with intentionalism are several:

—It is unclear whose expectations one should consult. We can start with the handful of men who actually drafted the Constitution’s provisions. But the final draft was approved by a convention of about 50 delegates, so perhaps their intentions should be consulted as well. Yet the Constitution was actually ratified by state conventions, so perhaps it is the intentions of the representatives at these conventions that control. But why stop there? The Constitution was ratified in the name of “We the People,” so perhaps the intentions of all Americans should be examined as well. All these problems arise before we even get to the men and women who amended the Constitution since.

—There is no way to properly weight the various intentions that must be consulted. Inevitably, in investigating the intentions of the men who wrote and ratified the Constitution, scholars focus on those whose thoughts survive in written form today. But why should the intentions of those egotistical enough to record their thoughts for posterity be privileged over the more reticent or less prolific—not to mention those not lucky enough to have had all their papers preserved? The thoughts of most men are swallowed up and lost in the wide womb of uncreated night. Evidently, their intentions don’t count.

—Intentions are subjective states that cannot actually be reconstructed. We have in reality have no access to the subjective expectations of any of the men who wrote or ratified the Constitution. We can only rescontruct those expectations based on written texts that they have left behind. So, in practice, the appeal to intentions amounts to the view that the Constitution is only one text among many that have quasi-constitutional status. Why texts that have never even been ratified should prevail over the actual Constitution, however, is a mystery.

—Intentions conflict. One ratifier may have expected an expansive national government; another may have expected a limited one. Given conflicting intentions, there is no way in principle to aggregate the intentions of all.

—Intentions come in all different kinds. Intentions may come as hopes or fears, not to mention fantasies or paranoias. They have widely varying intensities. The Federalist Papers, for example, were written to assuage the fears of those skeptical of the Constitution. Should the fears of the skeptics prevail? Why not instead the hopes of the nationalists? The variety of relevant individual intentions cannot be reduced to a single, uniform group “intention.”

—Intentions may be general or specific. The ratifiers of the Constitution doubtless had a specific intent, say, to end trade wars between the States and to establish an effective national court system. But they also had a much more general intent, say, to establish a lasting and just government. The more general the intent, the more liberally one may read the Constitution. At the highest level of generality, the appeal to intentions becomes a warrant to disregard the text of the Constitution entirely. Yet it is unclear why the most general intentions should not prevail over the more specific ones.

For these reasons, few originalists today defend original intent. Yet Gutzman still wants to cast incense at Madison’s shrine to divine the proper interpretation of the Constitution. His professed methodology is deeply flawed.

10. Contra Bramwell’s characterization, Gutzman in fact denies that “nobody who actually reads the Constitution could possibly conclude” that the Constitution creates an expansive Federal government. I am grateful to be corrected on this point, but I am also flabbergasted by Gutzman’s apparent concession that the Constitution’s meaning isn’t clear. If the Constitution isn’t reasonably clear, after all, then there can little hope for fixing its proper interpretation—except, perhaps, by consulting not the Constitution but historians such as Gutzman. If Gutzman wants to defend originalism, he should have bit the bullet and argued, as I suggested, that nobody who reads the Constitution fairly could interpret it as granting extensive powers to the Federal government. In characterizing his views as I did, I was actually trying to help him out.

11. Bramwell believes that “judges should feel free to ‘interpret’ the Constitution in any way they like.” Nothing in my article suggested I hold any such view. I argued only that, contrary to many libertarian originalists, the Constitution gives Congress vast powers traditionally reserved to the States. Gutzman in response blasts away at lawless judges. But I didn’t even address how judges should interpret the Constitution. Gutzman is inveighing against someone, clearly. That someone just isn’t me.

Now, I should say that I regret causing potential misunderstanding by asking, rhetorically of the Fourteenth Amendment’s rights provisions, “what does that mean?” In fact, I think it is quite clear how a reasonably observer in 1868 would have understood “privileges or immunities” and “equal protection of the laws”: he would have understood them to refer to fundamental individual rights. 

At the same time, though the meaning of the Fourteenth Amendment is clear, its application is not. The Fourteenth Amendment’s rights provisions are notoriously “open textured;” that is, they are wholly unspecific as to what exactly those “privileges or immunities” and “equal protection” rights are. When the Fourteenth’s Amendment open-ended rights provisions are combined with its McCulloch-inspired Enforcement Clause, the results are explosive—provided, that is, that one takes the original meaning of the Constitution seriously. Whereas previously, the people retained their rights against the Federal government, under the Fourteenth Amendment they give Congress unlimited authority to protect those rights however Congress deems fit. The Fourteenth Amendment turned the constitutional design of the Founding generation upside down.

12. In expounding his views on the Constitution, Bramwell “joins a slew of Straussians, neocons, liberals and other devotees of unlimited government.” I have no idea what Gutzman means by “Straussians” and “neocons.” Evidently, I am supposed to be frightened of these bogeymen. I confess, however, that I am not deeply immersed enough in the literature unmasking the untrammeled malevolence of neocons and Straussians to tell whether I should be frightened or not. Tell me what a “Straussian” or “neocon” argument is, and I will say whether I agree with it. Until then, Gutzman’s name calling doesn’t affect the truth of my arguments.

In any case, I am not a devotee of unlimited government. Gutzman apparently missed the point of my article, which was to prove that the Constitution is not the friend of limited government that many libertarians suppose. As I concluded the article, “I wish Gutzman were right that the Constitution vindicated limited government.” But Gutzman is not right. Libertarian constitutional scholars succomb to selection bias: they remember only the battles they have unfairly lost (such as over the scope of the Commerce Clause) but not the battles they have unfairly won (such as over the scope of Congress’s Fourteenth Amendment enforcement powers). If libertarians ever want to come up with an ideologically congenial constitutional theory, they’ll need to stop thumping their originalist bibles.

Original Sins

Cross-posted from Takimag.

I’m sorry, but Kevin Gutzman is totally wrong about the Constitution. In his books and many online articles, Gutzman argues that the Constitution grants the Federal government a handful of limited powers, but leaves the states free to govern as they like. Hence, almost the entire apparatus of the Federal government is unconstitutional. What’s more, says Gutzman, with no little vehemence, nobody who actually reads the Constitution could possibly conclude otherwise.

Wrong. It is Gutzman who hasn’t read the Constitution. Or, to be precise, like the various liberal and conservative scholars he excoriates, Gutzman skips over the parts of the Constitution that he doesn’t like. The Constitution as written contains barely any restrictions on the power of the Federal government to intrude upon the states. Gutzman just prefers not to notice.

Even if Gutzman were right about the Constitution, his theory of constitutional interpretation would still be utterly inadequate. Gutzman makes sport of contemporary scholars who derive their understanding of the Constitution not from the text from but the premise that Brown v. Board of Education was correctly decided.  But Gutzman too bases his constitutional theory on his ideological commitments. Suppose Gutzman were right about the original meaning of the Constitution in every detail. That still wouldn’t answer the question: why should we follow the Constitution anyway? Quite a lot of people find Gutzman’s Constitution abhorrent. They may fairly ask, why, if the Constitution (in their eyes) is so flawed, they should bother to restore its authority.

It won’t do to say we should follow the Constitution just because it’s the Constitution. Indeed, the more damning Gutzman’s critique of contemporary constitutional law, the more ridiculous the Constitution appears. Gutzman argues that the Constitution has never been followed. The Framers designed no mechanisms of constitutional defense; they bequeathed to posterity no more than a “parchment” barrier. It is one thing to champion a Constitution that might someday be followed, quite another to champion a Constitution that has no no chance ever in any circumstances of being followed. Gutzman has, if anything, built a strong case that the Constitution is a vain document that should simply be discarded.

To convince anyone otherwise, Gutzman has to offer some normative defense of the Constitution as written.  He has to say something such as: “Self-government depends on following the Constitution as actually ratified by the people” or “The Constitution as enacted embodies the paramount value of liberty.” As soon as Gutzman articulates his theory as to why we should follow the Constitution, however, it becomes clear that he too picks his values first and his Constitutional theory second. In that respect, he’s no better than a Brown v. Board-privileging liberal.  His wine, too, is made of grapes.

In any case, when it’s convenient for him, Gutzman doesn’t even argue that we should follow the Constitution.  He interprets the Fourteenth Amendment, for example, not in light of its meaning but in light of the alleged intentions of those who wrote and ratified it.  But the intentions behind an enactment are irrelevant to its meaning.  Take a recipe for almond torte.  The person who wrote it may have intended that the recipe produce macaroons. But that doesn’t change the meaning of the actual recipe. Likewise, the intentions of those who ratified the Fourteenth Amendment—even if they can be discerned, and even if by some miracle they do not conflict—do not determine the meaning of the Fourteenth Amendment. When it comes to the Fourteenth Amendment, Gutzman suddenly loses his interest in what the Constitution actually says.

As for what the Constitution does say—regardless of whether it should be followed or not—Gutzman labors to prove that constitutional law today has drifted quite far from what the Framers envisioned.  I couldn’t agree more.  The trouble is, the meaning of the Constitution for the Framers is of little more than antiquarian interest. The Constitution has been amended 27 times since the adoption of the Bill of Rights. It doesn’t matter what a particular provision meant in 1789.  The Constitution of 1789 is not the Constitution we have today.

Take the Necessary and Proper Clause. Gutzman fulminates against Chief Justice John Marshall for refusing in McCulloch v. Maryland  to interpret the Necessary and Proper Clause as limiting the implied powers of Congress.  For better or worse, the dispute over the original meaning of that clause is now largely irrelevant. Eight times since McCulloch, the people have seen fit to define the scope of a new Congressional power. Each time, they have used language right out of Marshall’s famous opinion: “The Congress shall have the power to enforce this article by appropriate legislation.” Compare Marshall: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” [emphasis added]. These eight new “enforcement clauses,” beginning with that of the Thirteenth Amendment, were understood to echo Marshall’s words. Gutzman doesn’t like McCulloch’s understanding of Congress’s implied powers, but the actual Constitution incorporates it.

Next take Gutzman’s prized concept of limited and enumerated powers. It’s true that the Constitution used to define Congress’s powers narrowly. That all changed, however, with the Fourteenth Amendment. The Fourteenth Amendment reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now, what does that all mean?  Nobody knows!  These words are almost totally opaque.  Clearly the states are prohibited from doing… something.  From doing things that are … well, things that are fundamentally bad.  That’s about as close to the meaning of the Fourteenth Amendment as one can reasonably hope to get.

In its the very opacity, the Fourteenth Amendment sweeps aside the system of limited and enumerated powers created by the Founders.  For the Fourteenth Amendment also gives Congress the power to enforce its provisions by “appropriate legislation.” In other words, Congress gets to stop the states from doing anything that’s fundamentally bad. What’s fundamentally bad? Well, that can only be for Congress to decide, since it’s the only branch of government expressly empowered to enforce the Amendment. Thus, Congress might prohibit the States from discriminating on the basis of race. It might also prevent the States from denying access to free health care, or refusing to advance the progress of minority groups by affirmative action. So long as Congress deems a policy to be a fundamental right, it can force the States to uphold it.

In the words of Justice Miller, author of the widely loathed majority opinion in the Slaughter-House Cases (1873), the Fourteenth Amendment, read literally, would

transfer the security and protection of all the civil rights which we have mentioned [i.e., all fundamental rights] from the States to the Federal government. . . .  [The literal Fourteenth Amendment] would constitute this court a perpetual censor upon the legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights ... .

Recoiling from the revolutionary consequences of the Fourteenth Amendment, Miller strove, heroically but ultimately unsuccessfully, to strangle the Fourteenth Amendment in its cradle. Gutzman reviles the “incorporation doctrine” whereby provisions of the Bill of Rights are enforced against the States. He should count himself lucky. In its original meaning, the Fourteenth Amendment enforces all fundamental rights against the states, whether embodied in the Bill of Rights or not. The Amendment gives Congress and the Federal government virtually unfettered power to rule over the States.

I wish it weren’t so. I wish Gutzman were right that the Constitution vindicated limited government. But it doesn’t. If we want to actually acquire limited government, a good first step is to be honest about this.