Charles Fried has suddenly become a very popular fellow on the Left. The former Reagan Solicitor General and Bill Weld appointee to the Massachusetts Supreme Judicial Court is being touted by the Washington Post’s in-house left-wing activists Greg Sargent and Ezra Klein, as well as ThinkProgress and Media Matters and its frenetic professional tweeters Eric Boehlert and Oliver Willis over Professor Fried’s support for the constitutionality of Obamacare. Dahlia Lithwick went further, using Prof. Fried’s prediction of an 8-1 decision as evidence that “[t]he conservative legal elites don’t believe in the merits of this challenge”. It’s not surprising that these folks are in such a rush to get the cover of a former Reagan lawyer to restore their talking point – now in tatters after a week of serious, sober and probing questioning from the Supreme Court – that only an extremist would think there is any constitutional issue at all with Obamacare. But there are some things they’re not telling you about Charles Fried.
Now, let me preface this by saying that I have a lot of respect for Prof. Fried. He was my constitutional law professor and probably the best teacher I had in law school, a brilliant man who had taught just about every area of law under the sun and was especially talented at bringing together the strands of disparate areas of the law. I read his book about his days as the SG before I started law school, and I respected his willingness – as a guy who is not pro-life – to argue, twice, for overturning Roe v Wade. He was also the faculty adviser for the Law School Republicans, which I headed for a time. Prof. Fried has indeed been, in the past, a longstanding member of the GOP legal establishment; he testified in favor of John Roberts’ Supreme Court confirmation, and in 2006 wrote a NY Times op-ed defending his former deputy, Samuel Alito, as “not a lawless zealot but a careful lawyer with the professionalism to give legally sound but unwelcome advice” and “a person who can tell the difference between the law and his own political predilections.”
But if you think brilliant people can’t be horribly wrong, you have not spent much time studying lawyers and the law. And if you’ve been reading the left-wing activists, you might not have learned that the 76-year-old Prof. Fried has not only been a vigorous defender of Obamacare who famously testified that the federal government could mandate that you buy vegetables and join a gym, he also voted for President Obama and wrote him what amounted to a political love letter last summer, wrote a book in 2010 with his son which he characterized as showing that the Bush Administration’s anti-terrorism policies “broke the law” and were “disgusting and terrible and degrading,” and has been a vociferous critic of the Tea Party.
Prof. Fried’s big, public break with the GOP came in the heat of the last election campaign, when he joined Weld in backing Obama, citing the selection of Sarah Palin as GOP vice presidential candidate. (Fried had published an article blasting race-based affirmative action in the Harvard Law Review when Obama was its president). He has staked out an increasingly strident view of the Commerce Clause in his defense of Obamacare, testifying:
Sen. Durbin: The point raised by Senator Lee – the ‘buy your vegetables, eat your vegetables’ point? I’d like you ask to comment on that because that is the one I’m hearing most often. By people who are saying “Well, if the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?” We’ve heard from Professor Dellinger on that point, would you like to comment?
Prof. Fried: Yes. We hear that quite a lot. It was put by Judge Vinson, and I think it was put by Professor Barnett in terms of eating your vegetables, and for reasons I set out in my testimony, that would be a violation of the 5th and the 14th Amendment, to force you to eat something. But to force you to pay for something? I don’t see why not. It may not be a good idea, but I don’t see why it’s unconstitutional.
Oddly, Prof. Fried even testified that if Congress lacked the power to mandate the purchase of insurance, “not only is ObamaCare unconstitutional, but then so is RomneyCare in Massachusetts” – despite the fact that the legal basis for a state-level mandate derives from state police powers rather than the more limited, enumerated powers in Article I of the U.S. Constitution (you can hear his rather tortured reasoning on this point near the end of this video):
Last August, during the debt-deal battle, Prof. Fried went further, penning an op-ed for the Daily Beast entitled, without irony, “Obama Is Too Good For Us,” blasting basically everyone in the GOP (besides Jon Huntsman) and Palin and the Tea Party movement in particular.
It is fair and accurate to describe Prof. Fried as a former Reagan official and former member of the GOP legal establishment. But it is deeply misleading to suggest that he speaks today for some element of mainstream thought on the Right, or to tout his views on Obamacare without presenting to readers his support for Obama, his effective divorce from the modern GOP, and the extreme nature of his views on the government’s ability to make you buy broccoli.