1 Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (to be codified primarily in scattered sections of 42 U.S.C.).

2 See (and hear) Matt Cover & Michael W. Chapman, Flashback: Pelosi on Obamacare's Constitutionality: ‘Are You Serious?’, CNS NEWS (Aug. 12, 2011), http://cnsnews.com/news/article/flashback-pelosi-obamacares-constitutionality-are-you-serious.

3 “[N]o word has a meaning inseparably attached to it; a word means what the speaker intends by it, and what the hearer understands by it, and that is all.” LEWIS CARROLL, THROUGH THE LOOKINGGLASS AND WHAT ALICE FOUND THERE, reprinted in LEWIS CARROLL, THE ANNOTATED ALICE: THE DEFINITIVE EDITION 213 n.10 (Martin Gardner ed., 2000) (citation omitted).

A problem arises when the speaker intends one meaning, but the hearer understands a different meaning. This problem can be ameliorated when the speaker explains what he means by a word—for example, when Humpty Dumpty told Alice that by “glory” he meant “a nice knock-down argument,” and by “impenetrability,” he meant “that we’ve had enough of the subject, and it would be just well if you’d mention what you mean to do next, as I suppose you don't mean to stop here all the rest of your life.” Id. at 213.

So we too attempt to explain what various people mean when they say “constitutional,” even though sometimes those meanings have no more to do with the Constitution than Mr. Dumpty's use of “impenetrability” has to do with whether something can be literally or figuratively penetrated.

4 See Barnett, Randy E., Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & Liberty 581, 583 (2010)Google Scholar (“There are three ways to analyze whether a law is constitutional or not. Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Are there five votes for a particular result? Unless we are clear about which sense of ‘unconstitutional’ we are using, we are likely to talk past each other.”).

“Alice felt dreadfully puzzled. The Hatter's remark seemed to her to have no sort of meaning in it, and yet it was certainly English.” LEWIS CARROLL, ALICE's ADVENTURES IN WONDERLAND (1865), reprinted in THE ANNOTATED ALICE: THE DEFINITIVE EDITION, supra note 3, at 3, 72.

5 U.S. CONST. art. II, § 1, cl. 5. To be sure, it is possible to argue that the thirty-five-year age limit is really a loose metaphor for maturity and that a very mature eighteen-year-old has in fact “attained the Age of thirty five Years” under the Constitution. See D’Amato, Anthony, Aspects of Deconstruction: The “Easy Case” of the Under-Aged President, 84 Nw. U. L. Rev. 250 (1989)Google Scholar; McGreal, Paul, There Is No Such Thing as Textualism: A Case Study in Constitutional Method, 69 Fordham L. Rev. 2393, 2437-38 (2001)Google Scholar. The fact that law professors’ argument that “thirty-five” means “of any age, as long as a person is mature,” strikes most people as strange, and would have struck almost everyone as strange in 1788, demonstrates that well-evolved languages usually function reasonably well as tools of communication, allowing us to speak of the objectively correct “meaning” of a text.

Only in academia would this point warrant a footnote—with multiple citations.

6 U.S. CONST. amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”).

7 For originalism, see, for example, Colby, Thomas B. & Smith, Peter J., Living Originalism, 59 Duke L.J. 239, 244 (2009)Google Scholar (originalism is “not a single, coherent, unified theory of constitutional interpretation, but rather a smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label”). For contemporary meaning, see Redish, Martin H. & Arnould, Matthew B., Judicial Review, Constitutional Interpretation and the Democratic Dilemma: Proposing a “Controlled Activism” Alternative, 64 Fla. L. Rev. (forthcoming 2012)Google Scholar.

8 See, e.g., JACK M. BALKIN, LIVING ORIGINALISM (2011).

9 See Boumediene v. Bush, 553 U.S. 723, 739-46, 843-49 (2008).

10 Even worse than the Red Queen's justice of sentence first, verdict afterwards. See CARROLL, ALICE's ADVENTURES IN WONDERLAND, supra note 4, at 124. Compare with the mouse's tale: “Said the Mouse to the cur, ‘Such a trial, dear sir, with no jury or judge, would be wasting our breath.’ ‘I’ll be the judge, I’ll be the jury,’ said cunning old Fury: ‘I’ll try the whole cause, and condemn you to death.’” Id. at 34.

11 For example, when asked about the Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005), Nancy Pelosi said, “It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken.” The Prowler, Nullification Nancy, THE AM. SPECTATOR (July 5, 2005, 12:09 AM), http://spectator.org/archives/2005/07/05/nullification-nancy. Not everyone agrees that judicial pronouncements on the Constitution should carry that kind of privileged weight. See, e.g., Lawson, Gary & Moore, Christopher D., The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267 (1996)Google Scholar.

12 “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Wendell Holmes, Oliver, The Path of the Law, 10 Harv. L. Rev. 457, 460-61 (1897)Google Scholar.

13 See RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY (2003). A really careful legal realist would worry less about what judges will do than about what the people with guns who are supposed to enforce judicial orders will do. If the 101st Airborne Division, for example, was not particularly interested in what the Supreme Court has to say, it is not clear why legal realists should be interested either.

14 See, e.g., Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla.), order clarified, 780 F. Supp. 2d 1307 (N.D. Fla.), aff’d in part, rev’d in part, 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012).

15 Letter from Franklin D. Roosevelt, President of the U.S., to Samuel B. Hill, Chairman of the House Ways & Means Comm. (July 6, 1935), available at http://www.presidency.ucsb.edu/ws/index.php?pid=14894#axzz1mWKxc01c.

16 See Cover & Chapman, supra note 2.

17 Several exhaustive studies of Founding Era usages of the term “commerce” have demonstrated that the Constitution uses the word “commerce” to refer only to a particular subset of economic activity—primarily the buying and selling of goods by merchants. See Barnett, Randy E., New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847 (2003)Google Scholar; Barnett, Randy E., The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001)CrossRefGoogle Scholar; Natelson, Robert G., The Legal Meaning of “Commerce” in the Commerce Clause, 80 St. John'S L. Rev. 789 (2006)Google Scholar. Prior to the New Deal, the Supreme Court repeatedly affirmed that insurance contracts “are not articles of commerce in any proper meaning of the word.” Paul v. Virginia, 75 U.S. (8 Wall.) 168, 183 (1869). The Supreme Court reversed itself in 1944 in United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944), which was a thinly and poorly reasoned decision that misused available sources (and ignored others). See Barnett, supra note 4, at 583-86.

18 See CURTIS W. COPELAND, CONG. RESEARCH SERV., REGULATIONS PURSUANT TO THE PATIENT PROTECTION AND AFFORDABLE CARE ACT (P.L. 111-148) (2010), available at http://www.shrm.org/hrdisciplines/benefits/Documents/Regulations.pdf (identifying more than forty provisions of the PPACA that confer significant rule-making authority on federal officials and hundreds of provisions that make reference to administrative authority).

19 See Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327 (2002).

20 See Florida ex rel. Bondi v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1299-1305 (N.D. Fla.), order clarified, 780 F. Supp. 2d 1307 (N.D. Fla.), aff’d in part, rev’d in part, 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012).

21 For an exhaustive survey of the severability issue, see Klukowski, Kenneth A., Severability Doctrine: How Much of a Statute Should Federal Courts Invalidate?, 16 Tex. Rev. L. & Pol. 1 (2011)Google Scholar.

22 CARROLL, ALICE's ADVENTURES IN WONDERLAND, supra note 4, at 120. Alice was objecting to the King's rule that all persons more than a mile high (allegedly Alice, although she denied the fact) must leave the courtroom. Id. The King retorted that the mile-high rule was “the oldest rule in the book.” To which Alice replied that the King had previously announced that the purported milehigh rule was “Rule Forty-Two.” Id. If the rule were the actually the oldest, said Alice, “[t]hen it ought to be Number One.” Id. And if America's “oldest rule in the book,” the Constitution, had meant to give the Congress the power to force people to engage in commerce, it would have said so.

23 26 U.S.C.A. § 5000A(a)-(b)(1) (West 2012). The criteria for “minimum essential coverage” are defined in 26 U.S.C.A. § 5000A(f), and the PPACA provides exceptions for prisoners and some members of narrowly defined religious communities. 26 U.S.C.A. §§ 5000A(d)(2)-(4).

24 For an exploration of some variants of such arguments, see Moncrieff, Abigail R., The Freedom of Health, 159 U. Pa. L. Rev. 2209 (2011)Google Scholar.

25 A fourth possible argument might try to find authorization in a broad congressional power to promote the “general welfare.” See SOTIRIOS A. BARBER, WELFARE AND THE CONSTITUTION (2005). Current law does not recognize any such power. The constitutional text gives Congress the power to tax “for the general welfare.” U.S. CONST. art. I, § 8, cl. 1. Current doctrine infers from this taxing power a power to spend for the general welfare (an inference that at least one of us thinks is mistaken, see GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE: TERRITORIAL EXPANSION AND AMERICAN LEGAL HISTORY 25-27 (2004)), but even that doctrine does not permit Congress to enact any law which Congress thinks will make some people better off. For a detailed analysis of the “general welfare” language, see Natelson, Robert G., The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003)Google Scholar. A full analysis of the original meaning of the general welfare clause would require a separate article, or perhaps even a book (which Lawson is contemplating). For present purposes, it is enough to note that constitutional authorization for the individual mandate cannot come from the general welfare language in the Article I Taxing Clause.

26 U.S. CONST. art. I, § 8, cl. 1.

27 26 U.S.C. § 7421(a) (2006).

28 See Liberty Univ., Inc. v. Geithner, No. 10-2347, 2011 WL 3962915, at *5-6 (4th Cir. Sept. 8, 2011), petition for cert filed, 80 U.S.L.W. 3240 (U.S. Oct. 7, 2011) (No. 11-438).

29 See Seven-Sky v. Holder, 661 F.3d 1, 21-23 (D.C. Cir. 2011) (Kavanaugh, J., dissenting), petition for cert. filed, 80 U.S.L.W. 3359 (U.S. Nov. 30, 2011) (No. 11-679).

30 PPACA, Pub. L. No. 111-148, § 1501(b), 124 Stat. 119, 244 (codified at 26 U.S.C.A. § 5000A(b)(1) (West 2012)).

31 See, e.g., id. §§ 9001, 9015, 9017, 10906, 10907.

32 See ABC News, Obama Goes Toe-to-Toe with Stephanopoulos on “Tax Increases,” YOUTUBE (Sept. 20, 2009), http://www.youtube.com/watch?v=rL7ak__MGyw.

33 “No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title … .” 26 U.S.C. § 7806(b) (2006).

34 U.S. CONST. amend. VIII.

35 The Constitution does not refer specifically to taxes on land, but it was commonly understood in the eighteenth century that land taxes were direct taxes.

36 For an exposition of the differences among duties, imposts, and excises, see Renz, Jeffrey T., What Spending Clause? (or the President's Paramour): An Examination of the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause 1 of the United States Constitution, 33 J. Marshall L. Rev. 81, 88–94 (1999)Google Scholar.

37 U.S. CONST. art. I, § 9, cl. 4.

38 Id.

39 Id. at art. I, § 8, cl. 1.

40 Id. at amend. XVI.

41 Comm’r v. Glenshaw Glass Co., 348 U.S. 426, 431 (1955).

42 See, e.g., Galle, Brian, Conditional Taxation and the Constitutionality of Health Care Reform, 120 Yale L.J. Online 27, 31 (2010)Google Scholar, http://yalelawjournal.org/2010/5/31/galle.html (claiming that the mandate penalty “is imposed on a particular use of wealth: the use of personal wealth for purposes other than the purchase of health insurance. Alternatively, it could be seen as a tax on a particular form of insurance: the choice to shift the risk of future medical needs from oneself to the social safety net”). This is a clever misconstruction of the normal meaning of words—just as good as the March Hare's insistence that Alice have “more tea” when she had not had any yet. CARROLL, ALICE's ADVENTURES IN WONDERLAND, supra note 4, at 75. “Pay taxes on your health care, even though you haven't had any yet.”

43 The only instance in which inactivity per se has ever been taxed concerns trusts: when a trust which was created for the express purpose of disbursing money in a certain way and at a certain rate fails to do so, the trust's excess retained wealth can be taxed. Trusts are artificial entities created by law, and subject to the rules under which they are created. American citizens, however, are not created by the government, and do not exist for the purpose of carrying out specified purposes determined by the government. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

The current litigation concerning the Commerce Clause also involves a purported distinction between activity and inactivity, with some opponents of the PPACA arguing that Congress's power to regulate commerce does not include the power to regulate inaction. See Thomas More Law Ctr. v. Obama, 651 F.3d 529, 547 (6th Cir. 2011), petition for cert. filed, (U.S. July 26, 2011) (No. 11-117). That is a completely different argument from the one that we are making here concerning taxation. Our point is that inactivity is not something that is a taxable event under the provision authorizing the imposition of “Duties, Imposts and Excises.” Whether inactivity can be “Commerce,” or whether regulating inactivity can be “Necessary and Proper” for executing the power to regulate commerce, is not relevant to the issue of whether inactivity can create a taxable event.

44 Interstate Transit Lines v. Comm’r, 319 U.S. 590, 593 (1943).

45 U.S. CONST. art. I, § 8, cl. 3.

46 See Perez v. United States, 402 U.S. 146 (1971).

47 See Gonzalez v. Raich, 545 U.S. 1 (2005).

48 U.S. CONST. art. I, § 8, cl. 3.

49 United States v. Lopez, 514 U.S. 549, 558-59 (1995) (citations omitted).

50 See Natelson, supra note 17, at 843.

51 This is also sometimes described as activities having a “substantial economic effect on interstate commerce.” Wickard v. Filburn, 317 U.S. 111, 125 (1942).

52 U.S. CONST. art. I, § 8, cl. 18.

53 See Gardbaum, Stephen, Rethinking Constitutional Federalism, 74 Tex. L. Rev. 795, 807-08 (1996)Google Scholar.

54 See Houston, E. & W. Tex. Ry. v. United States, 234 U.S. 342, 353-54 (1914).

55 U.S. CONST. art. I, § 8, cl. 18.

56 As we have noted, many of the New Deal cases justified enhanced federal power over the economy by employing the Necessary and Proper Clause, not by expanding or altering the core meaning of interstate commerce. A few cases, however, directly redefined the scope of interstate commerce, and one of those cases was United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944), which held for the first time in the nation's history that the writing of insurance contracts constitutes interstate commerce. As a matter of original meaning, the case is wildly wrong. See Barnett, supra note 4, at 585-86. But to pursue that topic would take us too far afield, so we assume for purposes of the present Article that Congress can use its commerce power to regulate the terms and conditions of insurance contracts.

57 What would the answer be without that threshold inquiry (and counterfactually assuming that regulation of insurance is regulation of interstate commerce)? As a matter of original meaning, it would require a detailed analysis of the Necessary and Proper Clause, which is beyond the scope of this Article. As a matter of extrapolations from existing case-law or predictions of likely Supreme Court voting patterns, we defer to Barnett, supra note 4, at 620.

58 2 WILLIAM BLACKSTONE, COMMENTARIES *347.

59 GILES JACOB, A NEW LAW-DICTIONARY (J. Morgan ed., 10th ed. 1782).

60 For a detailed discussion of the options available to eighteenth-century drafters, see Natelson, Robert G., The Legal Origins of the Necessary and Proper Clause, in Gary Lawson Et Al., The Origins Of The Necessary And Proper Clause 52, 72–78 (2010)Google Scholar.

61 See id. at 79-80.

62 U.S. CONST. art. I, § 8, cl. 18.

63 See Natelson, supra note 60, at 85-86.

64 17 U.S. (4 Wheat.) 316 (1819).

65 Id. at 411 (emphasis added).

66 Id. at 421.

67 See Lawson, Gary & Kopel, David B., Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale L.J. Online 267 (2011)Google Scholar, http://yale.lawjournal.org/2011/11/08/lawson&kopel.html.

68 See id.

69 For an extended discussion, see Gary Lawson & Guy I. Seidman, Necessity, Propriety, and Reasonableness, in THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE, supra note 60, at 120, 137-41.

70 See Lawson & Kopel, supra note 67, at 290.

71 CARROLL, THROUGH THE LOOKING GLASS AND WHAT ALICE FOUND THERE, supra note 3, at 214.