In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

(published in The Wall Street Journal, August 29, 2012)

By DAVID B. RIVKIN JR.

For many years now, a debate has raged over how best to interpret the Constitution and other canonical legal texts. One way of grouping the warring parties is to divide them according to their views of writing itself—the words on the page. The textualists feel a strong loyalty, even a moral commitment, to the words themselves and the meanings they were intended to convey. The non-textualists have a very different approach, guided by a peculiar view of democratic society and the law.

Like the government in Anthony Burgess’s “A Clockwork Orange”—setting out to adjust the behavior of inherently flawed men and women—non-textualists see the American electorate as a collection of people in need of improvement and democracy as too error-prone to do the job. Their solution is to vest judges with the ability to “adjust” the law in order to ensure a more “progressive” direction, loosely interpreting the wording of statutes and the Constitution and sometimes disregarding the wording entirely. The result is a search for non-democratic shortcuts as the best way to promote fairness and social justice.

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By David B. Rivkin Jr.

Editor’s note: This op-ed was originally published on September 29, 1993.

The president has announced his health care plan, and congressional Republicans have announced theirs. Although the details are still murky, the plans seem to share one fundamental assumption — that every man, woman and child in the U.S. must participate in the system. The healthy must subsidize the sick; the young must subsidize the old; the not so old must subsidize the very young. If this redistribution of wealth is to work without new taxes (and no one wants to admit that new taxes might be necessary), then everyone must be in the plan.

Where, exactly, does the U.S. government get the power to require that every one of its citizens must participate in a government-sponsored health care plan? Ask this of a health care reformer and he, or she, will sniff, think a moment, and (if legally trained) will immediately utter the two most magic words in late 20th century constitutional jurisprudence—Commerce Clause.

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“Congress has crossed a fundamental constitutional line.”

United States Supreme CourtAs the nation awaits one of the most important Supreme Court decisions of our time, efforts to sway the decision toward upholding ObamaCare are not in short supply. Some have the thin veneer of news articles; others carry the weight of admonition by the President himself. One can only conclude that such efforts are based on a sober assessment that overturning at least one linchpin of the law is a very real possibility.

The editors of this newsletter recall vividly how the efforts of Messers Rivkin and Casey to call attention to the unconstitutionality of the 2010 healthcare law were met with derision by professors, legislators, and, unsurprisingly, reporters and news “analysts.” The hearty laughs and chuckles have long since ceased.

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David Rivkin and Harvard Law Prof to Face Off June 15

Washington D.C. – As the U.S. awaits the Supreme Court decision on the Affordable Care Act (ObamaCare), the various factions pro and con continue to line up and weigh in on both whether and how the controversial law will stand. David Rivkin, who led the 26-state case against the U.S. government in Florida’s 11th District Court (whose judge, Roger Vinson, ruled in the plaintiffs’ favor, will meet Harvard Law professor Einer Elhauge, author of amicus briefs that assert the legality of the individual mandate. The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

For more information on the debate and the conference, visit www.texasbar.com.

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Constitutional Attorney David Rivkin to debate Harvard Law Professor at Texas Bar Association Meeting

The final word on the Obama administration’s signature health care law has yet to be spoken.  As the Supreme Court decision on the constitutionality of the Patient Protection and Affordable Care Act (aka ObamaCare) looms, organizations throughout the nation are lining up speakers and events to present their opinions—whether a pre-decision debate that might sway an undecided justice, or a post-mortem discussion on how the justices got it right or wrong.  Regardless of when the Supreme Court decision is handed down, the June 15 Texas Bar Association debate on the topic, the interchange promises to be both lively and substantive.

David Rivkin, an appellate attorney whom the Wall Street Journal credits with initiating the question of ObamaCare’s constitutionality and who represented the 26 states in the Florida health care lawsuit, will debate Harvard Law professor Einer Elhauge, who has filed amicus briefs asserting the legality of ObamaCare’s individual mandate.  The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

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The critics should look no further than the U.S. to see what consequences can ensue.

By DAVID B. RIVKIN JR. And KARL R. MOOR

While the Israeli political scene is no stranger to strident criticisms directed at senior government officials and their policies, the recent attacks on Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak over their policies toward Iran are a dangerous luxury.

Numerous retired security officials who do not lack a private voice or influence within a small nation. including former Shin Bet head, Yuval Diskin, ex- Mossad chief, Meir Dagan, and Former IDF Chief of General Staff Gabi Ashkenazi, have launched broadsides against the current Israeli government’s dire assessments of the Iranian threat and the best ways of dealing with it.

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