Judge Vinson’s Florida decision to declare the Affordable Healthcare Act unconstitutional primarily relies on his view that the mandate that individuals purchase healthcare insurance is not an activity that Congress can regulate under the Commerce Clause of the Constitution. There is no plain meaning or simple explanation of the Commerce Clause, which has itself been subject to varying interpretations.

Vinson’s approach  was to selectively review cases interpreting the Commerce Clause, while making little attempt to put the past decisions of the Supreme Court in historical and political context. It is not surprising that Vinson seems puzzled in his analysis since he is not the first federal judge (or Supreme Court Justice) to flail at understanding the Commerce Clause or to find selective meaning from prior decisions.

Felix Frankfurter, a noted jurist, lectured about the Commerce Clause before he joined the Supreme Court. His lectures were later published in a book, “The Commerce Clause Under Marshall, Taney and Waite.”One consistent theme is the deference of the Justices to political decisions by Congress.

Of Justice Waite he says, “Waite was governed by his general attitude in leaving to Congress, rather than in assuming for the Court, the accommodation of the commercial interests of state and nation.”

Frankfurter is fond of Harvard Law Professor James Bradley Thayer, and a quote he selected from Thayer is quite apt to today’s heated discussion and polemics, which obscure the legal issues. Although Thayer wrote in 1899, his comments are equally apt in 2011.

Thayer said:

“In considering this matter of constitutional power, it is necessary, in view of what we are reading in the newspapers nowadays, to discriminate a little. Our papers and magazines and even the discourses of distinguished public men, are sometimes a little confused. We must disentangle views of political theory, political morals, constitutional policy, and doctrines as to that convenient refuge for loose thinking which is vaguely called the “spirit” of the Constitution, from doctrines of Constitutional law. Very often this is not carefully and consistently done.”

Today in 2011 we can read commentators telling us that Judge Vinson’s decision is going to destroy state government because of his purported ignorance of the Constitution, as well as other commentators who seem not to have the slightest grasp of the scope and limitations of his decision—the Sky is Falling commentators on the web being the most egregious offenders.

Thayer recalls that it was, in the past, seriously argued that it was unconstitutional to issue paper money and make it legal tender, arguments often voiced with vehemence. Thayer observed that:
”The trouble has been, then and now, that men imputed to our fundamental law their own too narrow construction of it, their own theory of its purposes and its spirit, and sought thus, when the question was one of mere power, to restrict it great liberty.”

Of the Constitution, Justice Thayer said:

“As it survives fierce controversies from age to age, it is forever silently bearing witness to the wisdom that went in to its composition, by showing itself suited to the purposes of a great people under circumstances that no one of its makers could have foreseen.”

Thayer also said: “Petty judicial interpretations (of the Constitution) have always been, are now, and always will be, a very serious danger to the country.”

Judge Vinson, by inserting local politics into his decision and by pandering to the Tea Party in his analysis of the Constitution, has done a grievous wrong to the drafters of the Constitution as well as an injustice to the lower court judges who undertake serious analysis of difficult issues. Vinson, like many judges before him, has insidiously inserted petty politics and polemics into a serious issue of Constitutional interpretation. Thayer might well consider Vinson to be a danger to the country.