George Will apparently wants the Supreme Court to overturn the individual mandate—the requirement that Americans purchase health insurance. As Jonathan Chait points out, Will is faced with the unenviable task of reconciling belief in judicial minimalism, which he and other conservatives have spent decades extolling, with the impulse to take advantage of their narrow Supreme Court majority.
Will’s solution is to distinguish between “activist” and “engaged” judges. Activist judges create rights “not specified or implied by the Constitution.” Engaged judges, on the other hand, defend “rights the Framers actually placed there.”
The implication, of course, is that the right to be free to live without health insurance is “specified or implied by the Constitution.” Clearly it is not specified. It is also not implied—unless one undertakes a constitutional inquiry that would be indistinguishable from what liberal justices, those quintessential judicial activists, have always done.
What do I mean by that? I mean that one could argue that the Framers had a broad conception of human liberty that included expansive economic rights, and that these principles, properly understood and applied to our day, forbid the imposition of mandatory health insurance. But if this is the method of constitutional interpretation that “engaged” judges are supposed to follow when it comes to economic rights, then what about other rights? What is to stop a liberal justice from arguing that the Framers of the 14th Amendment had a broad conception of “equal protection of the laws,” and that, while the Framers themselves surely could not have envisioned this application, those principles, properly understood and applied, ought to forbid gender discrimination? Or permit affirmative action and abortion?
Will suggests that among the “rights the Framers actually placed there” in the Constitution are rights that are not specified but only implied. This is basically judicial liberalism. But Will abdicates the next step of the judicial liberal’s argument, which is a demonstration that the constitutional principle he advocates was, in either general or specific form, adopted by the Framers or implicit in the form of government that they handed down.
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