Supreme Court v. Constitution: activism or restraint?

Drafted in 1787, the Constitution has been the foundation of the United States's democratic system for over two hundred years. Many historians marvel at how this "living document" has adapted to enormous social and technological change with so few modifications in its text. Part of its longevity can be attributed to the Supreme Court, an institution which interprets the Constitution's words in order to give them practical meaning. During recent years, however, controversial decisions have prompted "strict constructionists" to attack the court for not exercising judicial restraint and applying the words of the Constitution with little regard to the intentions of the Founding Fathers. In contrast, "loose constructionists" argue that because the strengths of the Constitution lie in its implied principles, today's judicial activism is not only justified, but necessary. A closer examination of these views reveals that neither is entirely correct. A more satisfactory solution, tempering idealism with reality, would be a combination of the two.

While many people assume that the Supreme Court can only interpret laws, others assert that it should play an active role in creating policy. Sam Ervin points out that the Founding Fathers denied the Court policymaking power when they vested this power in the executive and legislative branches of government. Furthermore, only Congress and the states can amend the Constitution. Ervin argues that because the Constitution is the "supreme law of the land," the Supreme Court, an adjudicator, must always abide by the intended purpose of laws. Yet he ignores the fact that Congressional compromises often result in pieces of legislation containing vague language. Consequently, the Court usually has considerable leeway in determining how to interpret laws. Ramsey Clark maintains that the Court, through its interpretations, has the responsibility to respond to change when legislators do not: "The Constitution ... must have the durability and wisdom to grow, to encompass essentially new situations, to meet new needs." He applauds the landmark Court decision in Brown v. Board of Education as an example of justices following the spirit of the Constitution even though it did not specifically prohibit the "separate but equal" doctrine. Although Ervin feels that such decisions erode the Court's legitimacy, Clark realizes that "to blame the Court of upholding the [principles of the] Constitution is hardly to respect that document or to seek fulfillment of its word."

Ervin warns that the Court's discretionary power creates the danger of justices flagrantly abusing constitutional interpretations to suit their own interests and beliefs. "Under the guise of interpreting them," he observes, "the Warren Court repeatedly assigned to constitutional provisions meanings incompatible with their language and history." In contrast, Clark finds that the rulings of the Warren Court were needed to "liberate government from the 19th century" and correct injustices in American society. Ervin paints a dangerously idealistic portrait of the Court as a place of complete law and equity; clearly, no justice's decisions are ever entirely fair and impartial. On the other hand, Clark's vague statements about adhering to constitutional "principle" and "spirit" seem to encourage justices to interpret the Constitution's words any way they please.

Obviously, personal beliefs and society's pressures do frequently influence the Court's rulings. For example, the Court will almost certainly overturn its pro-abortion rights Roe v. Wade decision in the next few years because a conservative majority now presides in the place of the liberal majority present in 1973. [Present-day note: my prediction was off by 30 years.] During the Great Depression, a Court which originally declared much of Roosevelt's New Deal to be unconstitutional later gave in to economic realities and approved the federal aid programs. Ervin observes that "these things mean ... nothing to those who would as soon have our country ruled by the arbitrary, uncertain, and inconstant wills of judges than by the certain and constant precepts of the Constitution." Clark responds by citing the 1791 decision to charter a Bank of the United States. In this case, the Constitution's "necessary and proper" clause gave no help to the decision-makers, who instead relief on the "best judgment ... as to what was an appropriate rule for a constitutional federal government." Clearly, even the most impartial justices must sometimes exercise personal judgement when there are no legal precedents to follow.

Even though the philosophies represented by Ervin and Clark do not share ideas in common, the issues on which they focus are remarkably similar. Ervin equates restraint with conservatism and the literal meaning of the Constitution; Clark sees activism as a process that furthers liberalism through figurative interpretations. Ervin is wise to caution against twisting the Constitution's words; even judicial activists with good intentions might, through overzealous interpretations, accidentally destroy the meaning of the most treasured piece of parchment in the United States. Of course, some flexibility is necessary, as Clark explains: "It is hardly surprising that the words of the Constitution, even supplemented by their historical context, do not resolve all the great questions of our time." To a degree, activism and restrain complement each other. The Supreme Court would do best to tread a middle ground, respecting the strengths and weaknesses of both philosophies.

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I wrote this essay on January 2, 1992, when the Supreme Court's incumbent justices were Byron White, Harry Blackmun, William Rehnquist (then Chief Justice), John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas - the only justice who remains on the Court today.

Is Congress corrupt?

Hardly a day passes when people do not accuse national lawmakers of being corrupt and engaging in unethical behavior. Many citizens believe that a good deal of waste in government results from the misconduct of Congresspeople who regularly abuse their powers. Since no clearly defined code of Congressional ethics exists, however, there is little agreement over the issue of whether members of Congress are truly corrupt. For example, Mark Green, representing the interest group Public Citizen, argues that most senators and representatives do not try hard enough to avoid conflicts of interest between their governmental responsibilities and private affairs. Edmund Beard and Stephen Horn, on the other hand, assert that many instances of so-called corruption in Congress are often not what they seem to be. In order to determine which view contains the most truth, it is necessary to analyze how varying degrees of interest conflicts, ethics laws, and popular misperceptions influence Congressional behavior.

All members of Congress have financial conflicts of interest; the problem lies in determining which of these conflicts truly violate the public trust. Beard and Horn point out that "outside the boundaries of bribery and overt self-dealing, there is very little consensus ... about what constitutes a legitimate or an illegitimate business or political transaction." Asserting that it would be ridiculous to deny legislators the right to financial security, they quote a Congressman who says, "'I have to maintain outside interests. What if I'm defeated tomorrow? What do I do?'" On the other hand, Green believes that many Congressmen who hold stock in large businesses profit illegally from their power over government contracts. Arriving at the questionable conclusion that holding "sensitive shares of stock" is a sure sign of corruption, Green provides little evidence to show that Congresspeople manipulate tax laws for personal benefit. Although Beard and Horn concede that some members of Congress do occasionally favor bills benefiting their own interests, they also caution against analyzing voting trends from incomplete data.

With regard to another breach of ethics, legislators' use of campaign funds for personal purposes, clear definitions are also a major difficulty. Green argues that a repeated pattern of abuse exists among vacationing Congresspeople who turn pleasure trips into "campaign expenses" by meeting briefly with handfuls of supporters. He cites several specific cases before 1979 as evidence but minimizes the impact of a law the same year restricting the misuse of campaign funds. Even though one must concede that law enforcement in this area of abuse can certainly be improved, another obstacle stands in the way of large-scale investigations. According to Beard and Horn, though all members of Congress view the misuse of campaign funds as serious violations of existing law, they do not always agree where the line should be drawn between personal and political activities because "campaign funds and personal finances may complement each other."

Members of Congress may also be corrupted by private corporations offering favors. Besides enhancing a legislator's prestige, Congressional office entails many fringe benefits, such as the opportunity for unlimited travel and free lodging, courtesy of businesses trying to win influence. However, Beard and Horn's interviews with members of the House reveal that few actually feel obligated to return such favors. In fact, one legislator who once received a free flight to India feels that the "junketing" label is unfair. Yet Green argues that members of Congress can be corrupted by private businesses if they are guaranteed a future reward, such as an important corporate post, upon their departure from politics. However, most Congressional incumbents, who have upwards of an 80% success rate for reelection, have little reason to worry about losing their jobs. Most Congresspeople feel that as long as they are not corrupted by the privileges that come with their positions, they are not violating any existing code of ethics.

While Mark Green seems eager to pounce on the evils of lawmakers, Edmund Beard and Stephen Horn, who recognize that real Congressional practices cannot hope to fulfill idealistic public expectations, present a more convincing view of the controversy surrounding ethics. Although Green charges that Congress should bear the blame for the lack of specific ethics standards, Beard and Horn point out that "any congressional behavior ... not designed to advance the common interests of constituents and country might be termed conflict of interest" and thus be unethical. The more flagrant cases of corruption cited by Green are testimony to the views of some Congressmen, but it does not follow that these cases are routine. Although he believes that "with few barriers against it, potential conflict of interest becomes commonplace," the key word is potential. The watchful eyes of the media, coupled with Congress's own ethics committees, deter corruption by preventing most cases of outright bribery from taking place. Acknowledging the imperfections of a few individual members does not automatically make Congress unethical or corrupt. Ironically, Green makes the most eloquent statement reinforcing this view: "Most members of Congress," he admits, "aren't crooks."

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This is the second of three recently unearthed essays on elections and political institutions that I wrote in 1991, when Donald Trump was a recently divorced real estate developer and owner of a money-losing airline ("Trump Shuttle") and Kamala Harris was a deputy district attorney in Oakland, California.

Is there a right to not vote?

The right to vote in the direct election of public officials is today taken for granted by citizens of the United States. In the 1960s, a series of civil rights movements finally banned election discrimination and guaranteed the right to vote to every citizen, regardless of race, sex, or religious affiliation. However, because only a minority of Americans actually do vote in local elections, another controversial issue has arisen regarding elections and nonvoting: is there a right not to vote? Nonvoting, which has become much more frequent in recent years, has been viewed as a dangerous sign of voter apathy and a threat to democracy. On the other hand, it has also been dismissed as a minor problem that has been blown far out of proportion. But which view is correct? The answer can only be determined through an analysis of the types of non-voters and the motivations behind their decisions to not vote.

The reason citizens most often give for their decision to not vote is that they don't care about who gets elected because the result will not directly affect them. Curtis Gans notes that although in recent years "the United States has made it easier to vote," fewer ordinary Americans actually do vote, "sapping the voluntary spirit of participation" that is essential in any democracy. In contrast, J. Austin Ranney takes the position that "there is no reason to believe that a high level of nonvoting is, by itself, a symptom of sickness in American society." Quite possibly, if those voters who truly "don't care" were forced to vote to avoid nonvoting fines, their random votes could distort the opinions of voters who did care about the issues. Gans's picture of an "interested few" influencing issues is legitimate, but these people should not be regarded as a political elite. His argument can just as easily state, "if the few who do not care do not vote, then each issue will be settled in favor of the many who do care, satisfying the voters and doing no harm to the nonvoters." Although some European nations require all citizens to vote whether they want to or not, American democracy relies on a sacred doctrine called "majority rules," referring not to a majority of the people, but to a majority of those people who care strongly enough to vote.

The bureaucratic process itself presents another difficulty in getting citizens to vote. In many countries, citizens are registered automatically, but in the United States, a citizen must take it upon himself to register and re-register, especially if he changes his place of residence. Sometimes obstacles in the registration process may frustrate the voter to the extent that he decides that his vote "will not make a difference." Although Ranney agrees that "clearly it is a bad thing if citizens who want to vote are prevented from doing so by law or intimidation," he also cautions that "the most we can realistically hope for ... is a modest increase ... in our average turnouts." Same-day registration might also make elections more susceptible to voter fraud. Although Gans advocates drastic measures such as "reducing the length of ballots" and "establishing a commission to look into ... discrimination and intimidation which still plague our polls," he gravely undermines his own arguments. One of the actions he recommends, an initiative to "reduce the number of elected offices," will in fact reduce democracy and give voters even less of a reason to go to the polls. In contrast, Ranney asserts that even though the registration process can and should be streamlined, "the right to abstain is just as precious as the right to vote."

One real problem pointed out by Curtis Gans is that many Americans do not have enough knowledge to make an educated choice for or against a political candidate or issue; therefore, they have no reason to vote. He laments the breakdown of consensus since the 1960s and points to political factionalism as the cause of many present-day problems such as pollution and big-city crime. Even though a diversity of interests is a strength of American politics, not all the interests of the electorate are represented fairly; Gans describes one group of nonvoters as being "poorer, younger, less educated ... and more urban underclass than the rest of the population." Ranney agrees that this is somewhat true, but he predicts "a major increase in our voting turnouts" once members of minority groups realize that voting can give them a voice in government. This time, both sides are pushing their arguments too far. Ranney's rosy prediction of a "70 to 80 percent voter turnout" once minorities mobilize in politics is clearly high. In addition, Gans's demand for more comprehensive voter information is unreasonable; such information will most likely come from the candidates themselves, who will naturally present themselves in a favorable light. Obviously, voters do not weigh every single detail of an issue when they go to the ballot box, but this fact will not stop most of them from making an educated choice based on their own political beliefs.

Finally, there is the question of voting in a democracy; has a decline in civic responsibility led to a decline in voter turnout? The Declaration of Independence, which set forth the principles of American democracy, states that government derives its powers "from the consent of the governed." Gans points out that low voter turnout has greatly eroded the strength of political parties, but the Founding Fathers did not envision political parties as forums for issues in the first place. Ranney, who believes that voluntary nonvoting does no harm to democracy, feels that voting is not the only way to express "consent." Indeed, many studies show that Americans are more likely to become involved in special interest groups than citizens of other countries with a larger percentage of voters. Therefore, civic responsibility is not on the decline; people have found that a better way to influence government is to find strength in numbers. Voting is an individual act, but political participation, which goes beyond voting statistics, cannot be accurately measured.

Citing low voter turnouts, Curtis Gans mistakingly assumes that "we are ... in danger of becoming a nation governed of, for, and by the interested few." However, Austin Ranney reasons that "we need not fear that our low voting turnouts ... deprive us of the right to call ourselves a democracy." Voter apathy, registration difficulties, and a lack of unbiased information on important issues has always hindered voters and will continue to do so in the future. Although efforts to encourage more people to vote will continue, measures should not be undertaken to require every citizen, whether he or she cares or not, to fill out a ballot just to keep the United States a democracy. Fortunately, American democracy protects a citizen's right not to vote; otherwise, elections might very well be decided on the whims of those people, who in Gans's words, "just don't give a damn."

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This is the first of three recently unearthed essays on elections and political institutions that I wrote in 1991, when Donald Trump was a recently divorced real estate developer and owner of a money-losing airline ("Trump Shuttle") and Kamala Harris was a deputy district attorney in Oakland, California. If you wonder what politics has to do with health care, you haven't been reading my blog for very long.

Improving primary care for patients with opioid use disorder

Earlier this year, the National Center for Health Statistics announced that in 2023, the estimated number of drug overdose deaths decreased for the first time since 2018 from 111,029 in 2022 to 107,543 in 2023. Mirroring the overall trend, overdose deaths involving opioids decreased from an estimated 84,181 in 2022 to 81,083 in 2023. However, medical care of patients who survive overdoses remains suboptimal. A cohort study of more than 130,000 Medicare beneficiaries who experienced a nonfatal drug overdose in 2020 found that although 88.8% received behavioral health services, only 4.2% were prescribed medications for opioid use disorder (OUD) and 6.2% filled a naloxone prescription during the following year.

An analysis of 2022 data from the National Survey on Drug Use and Health suggests that 3.7% of U.S. adults meet DSM-5 diagnostic criteria for OUD. Of this group, 55.2% received some form of OUD treatment, and 25.1% received medications for OUD. Another survey study highlighted one significant barrier to care: Most people either do not know that primary care physicians can prescribe medications for OUD or incorrectly believe that they cannot. Although family physicians make up the largest share of buprenorphine prescribers, according to a 2020 Graham Center Policy One-Pager, the vast majority of family physicians are not prescribing. A systematic review found that physicians are reluctant to address substance use and addiction in their practices because of lack of institutional support, knowledge and skills, and cognitive capacity.

Collectively, these health care system limitations create major gaps in the cascade of care for OUD, according to a JAMA commentary:

The care cascade—widespread screening regardless of the point of care; ensuring diagnosed patients receive treatment, including medications; and retaining patients in care—has been part of medical care for many years and most clinicians, regardless of medical specialty or practice setting, have understood its importance. … With 1 in 27 adults needing OUD treatment, most US clinicians are likely to have patients who need treatment in their practices, whether they are aware of it or not.

For patients with OUD who decline treatment with sublingual or long-acting injectable buprenorphine, clinicians can offer harm reduction strategies such as naloxone distribution, needle and syringe programs, and long-acting reversible contraception, if applicable. A previous AFP article on primary care for persons who inject drugs recommends screening for HIV infection, latent tuberculosis, and hepatitis B and C; providing vaccinations for hepatitis A and B, tetanus, and pneumonia if indicated; and offering HIV pre-exposure prophylaxis.

A cluster randomized trial conducted from July 2021 to June 2022 evaluated the effect of a community-level intervention to increase uptake of evidence-based practices to reduce opioid-related overdose deaths: overdose education and naloxone distribution, medications for OUD, and prescription opioid safety. In the United States, 67 communities in Kentucky, Massachusetts, New York, and Ohio were randomized to the intervention or a wait-list control. Unfortunately, opioid overdose death rates were similar in the intervention and control groups. The intervention’s apparent lack of effect may have been due to the short follow-up period, a coincidental spike in fentanyl-related overdoses, challenges in implementing practice changes during the COVID-19 pandemic, and a low (less than 20%) rate of medications for OUD–prescribing in intervention communities.

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This post first appeared on the AFP Community Blog.

Get out the vote: supporting civic health in primary care

The national organization Vot-ER designated August as Civic Health Month, “a time to showcase the link between voting and health and celebrate efforts that ensure each and every voter has the opportunity to support their community’s health at the ballot box.” Partners, including the American Association of Medical Colleges, encourage clinicians and health care organizations to support an inclusive democracy by providing patients with nonpartisan education and voter registration services.




A narrative review in The Milbank Quarterly explored the role of primary care in advancing civic engagement and health equity. Research shows that poorer population health is associated with lower voter turnout, with stronger associations occurring in early adulthood rather than in middle age. On the other hand, voting is associated with positive mental health and health behaviors, and higher levels of individual happiness strongly predict future civic engagement. Similarly, volunteers are less likely to be hospitalized and more likely to receive preventive care, even after controlling for age, gender, race, income, education, and insurance status: “In one study of US adults, volunteers spent 38% fewer nights in a hospital and were more likely to receive services such as flu shots, cholesterol screening, mammograms, and prostate exams as compared with nonvolunteers.”

Primary care physicians have successfully engaged patients with “civic health check-ups” at federally qualified health centers and other outpatient locations. In a voter registration project in the waiting areas of two family medicine residency clinics in the Bronx, volunteers registered 114 of 128 eligible patients during a 12-week period, 65% of whom were younger than 40 years. During the COVID-19 pandemic, a general internal medicine clinic in North Carolina used its patient portal to disseminate a REDCap survey containing embedded links to voter resources, including safer alternatives to in-person voting during the 2020 elections.

Outside of these and other individual case studies, voter enfranchisement remains, to borrow from the title of a 2020 perspective article in the Journal of General Internal Medicine, “an underused treatment strategy." To make voting a “standard of care,” Vot-ER is hosting several online events this month for clinicians who are interested in empowering patients to support their community’s health at the ballot box.

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This post first appeared on the AFP Community Blog.

Assessing new screening strategies: collaboration and persistence pay off

One strategy that I've found ensures a long and productive academic career is collaborating with talented and curious colleagues. I first put it into practice as a medical officer at the Agency for Healthcare Research and Quality, writing evidence summaries and systematic reviews with other staffers and rotating Preventive Medicine residents. At Georgetown, I collaborated with a terrific team of health researchers to write papers on interpreting and managing test results for Zika virus and COVID-19. I've collaborated with members of the AAFP's Commission on Health of the Public and Science on clinical practice guidelines on COPD exacerbations and blood pressure targets in adults with hypertension. I've collaborated on articles on social media for doctors and advocacy curricula in family medicine residency programs. Through the Lown Institute, I have collaborated on original work estimating the U.S. rate of overuse of screening colonoscopy and the associated harms. And most recently, I worked with a longtime mentor and sometime mentee on an analysis piece in BMJ Evidence Based Medicine that assesses evidence thresholds for proposals for updating established screening strategies.

How this paper came about deserves some explanation. In spring 2021, a company interested in developing a new screening test approached me to ask whom they should consult about the type of evidence required for that test to be endorsed by guideline panels and be covered by insurance. I recommended Russ Harris, a former U.S. Preventive Services Task Force (USPSTF) member who had retired from his academic position at UNC-Chapel Hill but was still interested in pursuing new scholarly projects. Russ then reached out to me in an e-mail: "I don’t think the methods are well worked out for replacing an established screening strategy with a new one in the absence of a formal RCT. Do you have any interest in [doing] some scholarly work on making a contribution to this problem?"

I responded: "I agree with you that it's not clear what kind of evidence is needed to recommend a new screening strategy without a RCT with mortality outcomes. I've been puzzling over this problem since the USPSTF first recommended CT colonography and FIT-DNA for colorectal cancer screening, apparently on the basis of being able to plug their diagnostic accuracy studies into a decision model. I don't see how the TF got to 'high certainty of substantial net benefit' for these tests."

Not long after that, we recruited the third member of our team: Alison Huffstetler, whom I met when she was completing her policy fellowship at Georgetown (we both saw patients in the same family medicine office on Fridays) and had subsequently taken a research faculty position at Virginia Commonwealth University. We decided that we would each study a different condition where the USPSTF had adopted a new screening strategy (cervical, colorectal, and breast cancer) and formulate some common principles that would drive the paper's analysis. Ambitiously, in early May I proposed a timeline that would allow us to "get the bulk of the paper written in the second half of June / first half of July [2021]."

It took a bit longer than that. I moved back to DC from Utah, then moved to Lancaster the following summer to start a new job. Alison got married, changed jobs, and had a baby. Russ kept us on task and, though many Zoom calls, we kept making progress.

Finally, in January 2023 (a year and a half later), we completed a manuscript that we submitted to the American Journal of Preventive Medicine. It was peer reviewed but rejected. We did some rewriting and resubmitted it to JAMA Internal Medicine in June 2023. It was "desk rejected" (not sent out for review) by JAMA-IM, then, in rapid succession, transferred to and rejected by JAMA Health Forum and JAMA Network Open. We moved on to the Journal of Clinical Epidemiology, Annals of Internal Medicine, and then the Journal of General Internal Medicine: same outcome. In the meantime, I presented our paper at the Preventing Overdiagnosis conference in Copenhagen and received some encouraging feedback, which provided enough motivation to keep trying. We embarked on another rewrite and resubmitted the paper as an analysis piece to BMJ in January 2024. The journal's editors rejected it after peer review, but they advised that it could be a good fit for BMJ Evidence Based Medicine. We revised our paper in response to the reviews and submitted it to BMJ-EBM in April 2024. More revision requests ensued. Finally, on August 21, our paper was accepted, and it was published online on September 3.

If you've been keeping count, 8 journals had a chance to publish our manuscript but passed after varying degrees of editorial and peer review. Number 9 turned out to be the charm. This paper required not only collaboration, but dogged persistence and an unswerving belief that we had something of value to contribute to the dialogue around screening. I hope you will agree.