Black Swan Alert

120px-CygnusAtratus_2259Jack Balkin has a post outlining his view that the individual health care mandate is constitutional.  He closes with this:

“I assume that as soon as the health reform bill is passed, people will challenge the individual mandate in court. I doubt these challenges will succeed. But stranger things have happened in constitutional law, and I’ve seen some of them in the past twenty-five years I have been teaching in this area. I will, however, say this: The Supreme Court would have to significantly alter its post-New Deal doctrines to strike this tax down. It could not just apply the law as it currently exists; it would have to change the law markedly. At present, I do not think the votes are there for such a constitutional revolution.”

The problem is that Balkin provides no explanation about why or when “stranger things happen” in constitutional law.  This sort of improbable event — a black swan — is treated as random.  That is simply wrong.  A central idea of my scholarship, both in my book about Jacksonian Democracy  (see the Amazon ad to the right) and my forthcoming book about Populism, is that these “preemptive opinions” follow a pattern. First, they are clustered around brief transition periods that follow a party realignment.  (In my view the 2008 election was such an event, though clearly that is a contestable assumption.)  Second, these cases share a distinctive signature.  Worcester v. Georgia, Dred Scott, Pollock, and Schechter Poultry are similar even though they are widely separated in time and dealt with very different questions.  (Indeed, as I said in a previous post, Pollock is the most relevant opinion for thinking about the health care mandate, both because of its political context and its discussion of direct taxes.  If you substitute “income taxes” for “individual mandate” in Balkin’s passage above, his comment is exactly what a constitutional expert would have said in 1895 about the challenge to the 1894 income tax.  How did that work out?)

Just to be clear, I am not saying that it is a certain that the Court will strike down the individual mandate. What I am saying that most scholars are looking at the wrong data set to make this prediction.  Instead of looking at all constitutional cases or all Commerce Clause cases, they should look at the smaller sample of cases at a generational inflection point that involve a major initiative of the new movement. When I look at that category, the odds of invalidation are more probable than not.

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