One of the interesting aspects of Supreme Court opinions is how much or little candor they exhibit. Put differently, are the justices being honest about the principles that actually govern their views?  Originalists often argue that judicial nonoriginalists fail to acknowledge that they are not conforming to the original meaning (except when such nonoriginalist is justified by precedent or practice). While I think this is largely true, nonoriginalists do signal their views. Justice Brennan or Justice Breyer indicate that they do not feel bound by the original meaning, but still they don’t acknowledge that they are departing from the original meaning in specific cases.

In terms of candor, it is interesting to consider two areas where the New Deal Court stopped enforcing constitutional limits: limits on Congress’s authority under the Commerce Clause and the Necessary and Proper Clause, and limits on Congress’s power to delegate legislative power to the executive.  In both cases, prior to the New Deal, the Constitution was thought to place significant limits on Congress’s authority. But after the New Deal, the Court stopped enforcing these limits. In the case of the Commerce Clause, the Court is now willing to enforce some limits again, but not in the area of the nondelegation doctrine.

Interestingly, though, during the post New Deal era, the Court never announced clearly that it was no longer enforcing the limits. Instead, it simply applied a doctrine that through a variety of devices, such as the rational basis test, always led to the result that Congress had the necessary authority. Sophisticated observers, of course, acknowledged that there were no limits on Congress’s authority. For example, I was taught this in law school. But the Justices never acknowledged it forthrightly.

In a way, this is a bit peculiar. If one wanted to cement the doctrine that Congress was not subject to limits, one way to do so would be to openly announce this doctrine. In that way, it would be harder for future courts to depart from the doctrine. For example, U.S. v. Lopez was able to exploit the fact that the Court had never asserted that there were no limits on the Commerce Power. Yet, the pre-Lopez Court never said so clearly.

One likely explanation for the failure of the Court to acknowledge that there were no limits was that it would too clearly suggest that the Court had rewritten the Constitution. The original meaning plainly placed limits on Congress’s authority in these areas and saying otherwise would have opened the Court to attack. So instead of announcing what they were doing, they misrepresented what they were doing and relied on sophisticated observers to teach new lawyers what was really going on.

If this is what happened, it ain’t pretty. But lots of government isn’t.