Monday, June 25, 2012

Manufacturing Concensus

Ezra Klein thinks he knows something significant. And he's not alone in this; he's joined by a host of other liberal and progressive pundits. The something: Obamacare is absolutely constitutional, suggesting that any part of it--especially the individual mandate--is not is just nonsense. But Klein--like all of the others--is wringing his hands, filled with angst that the "unthinkable" might happen, that the Court may strike down parts of the legislation, especially the individual mandate.

To buttress his claims of absolute constitutionality, Klein cites a "poll" undertaken by Bloomberg:
A poll of top constitutional law scholars found that 19 of 21 thought the mandate was constitutional, but only eight were confident the Supreme Court would uphold it.
In Klein's previous piece (from yesterday), he also cited this "poll," saying basically the same thing as above:
Bloomberg surveyed 21 top constitutional scholars and found that, while 19 think the individual mandate of the Affordable Care Act ought to be upheld on the basis of legal precedent, just eight think the Supreme Court will actually do so...
Well, not quite the same thing. Klein went from Bloomberg "surveying 21 top constitutional scholars" to "a poll of top constitutional scholars." No doubt, some are scratching their heads, wondering why I'm dwelling on these word choices and why I keep putting "poll" in quotations. So let's get to it. Here's the original article at Bloomberg that Klein has now cited two days in a row. From that piece:
The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years...
Granted, 19 out of 21 gives a high percentage of legal scholars who think the mandate is definitely constitutional, over 90% in fact. So, the headline could be "90% of Legal Scholars Say Healthcare Mandate Is Constitutional." Except for one small problem. Read the above quote from Bloomberg again and you might notice--or may have already noticed--four words that require some explaining: who have ventured an opinion. What does that mean? The answer is found buried deeper in the Bloomberg article:

The Bloomberg News questionnaires were sent to 131 professors at the top law schools in U.S. News’s ranking who have taught or written about constitutional law or have professional experience with constitutional litigation, according to school biographies. Questions were sent to office e-mail addresses listed in faculty directories...
Respondents to the questionnaire were: Ackerman; Choper; Fried; Hutchinson; Klarman; Roosevelt; Whitman; Guy-Uriel Charles, Duke; Norman Dorsen, NYU; Jamal Greene, Columbia; Andrew Koppelman, Northwestern; Gillian Metzger, Columbia; Anne Joseph O’Connell, California; John David Ohlendorf, Northwestern; Richard Parker, Harvard; David Richards, NYU; Adam Samaha, Chicago; Neil Siegel, Duke; Fred Smith, California; Laurence Tribe, Harvard; G. Edward White, Virginia.
So let's be clear: there was no stinking poll, there was just an e-mailed survey form sent out to one hundred and thirty-one professors at various highly rated law schools. And of that group, exactly twenty-one responded, some 16%. Both of Klein's statements are misrepresentations: there was no poll and Boomberg did not survey 21 specific "top constitutional scholars." Looking at that list, I'm not sure that they even surveyed more than a handful. I'm not a lawyer, nor a legal expert, but I read a lot of case law on the Constitution. Of the names on the list, I recognized exactly two: Laurence Tribe and Bruce Ackerman. Checking an online listing of highly cited Constitutional Law professors, I find one more clear "top scholar" on the list: Charles Fried.

Why didn't all of the other professors respond? Who knows. Many of them probably have dreams of future appointments to Federal or State Courts and don't want to offer an opinion that could come back to haunt them in the future. But regardless, the supposed consensus opinion from legal scholars on the constitutionality of the individual mandate does not exist. Klein is manufacturing it. And to make it stick, he's repeating it, again and again. I'd bet dollars to donuts that he mentions the "poll" again, before Thursday arrives (the day the Court will make its ruling on Obamacare).


It's all very reminiscent of the "universal" agreement--from economists on both "sides"--on the need for the Stimulus Bill, as promulgated by Obama, Biden, and their willing media dupes.

Cheers, all.


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