The Tea Party’s Constitution
A federalism debate on the right.
Aug 29, 2011, Vol. 16, No. 46 • By ADAM J. WHITE
Campaign events tend not to be the first place to look for nuanced constitutional debate; the Lincoln-Douglas encounters are the exception that proves the rule. So what are the odds that a thoughtful debate would occur not just between candidates of rival parties, or even rival wings of the same party, but within the Tea Party itself?
Yet that’s just what’s taking place, judging by the latest Republican debate in Ames, Iowa. The candidates there split sharply over questions of federalism and liberty. Interestingly, each side’s vision of the Constitution finds support in the Tea Party’s constitutional rhetoric.
In Ames, Mitt Romney was asked to explain the difference between Obama-care’s “individual mandate”—the new federal requirement that individuals obtain health insurance or pay a penalty—and the corresponding mandate that Romney signed into law as governor of Massachusetts in 2006. The apparent similarity between those two mandates poses perhaps the biggest threat to Romney’s candidacy. That Obamacare’s mandate is unconstitutional is a view widely shared by conservatives. As the legal fight over that law races toward the Supreme Court—most recently in an August 12 federal appellate court decision finding the mandate unconstitutional—Romney must convince primary voters that his mandate, unlike Obama’s, passes constitutional muster.
So when debate moderator Chris Wallace gave Romney the opportunity to distinguish Obamacare from Rom-neycare, the candidate was ready:
Romney’s answer was anchored in mainstream conservative legal thought. The Obamacare mandate’s flaw, as asserted in the various lawsuits filed to block it, is that none of the limited powers granted to Congress by the Constitution includes the power to require persons to purchase health insurance. The Commerce Clause empowers Congress to “regulate” interstate commerce, not to mandate the purchase of it.
When Romney paired the Commerce Clause’s limit on federal power with the Tenth Amendment, he evoked another pillar of constitutional conservatism: While the Constitution enumerates limited federal powers, it imposes no equivalent check on the states’ powers.
Romney’s answer was so well rehearsed, and so thoroughly consistent with the last few decades of conservative legal thought, that the candidate appeared confused by the follow-up question. Wallace pressed Romney to explain why “government at any level,” federal or state, “has the right to make someone buy a good or service.”
Romney responded that the Massachusetts Constitution, unlike the U.S. Constitution, authorizes the state to impose a mandate. As a matter of Massachusetts law, he was correct. But he also revealed his blind spot: It seemed not to occur to him that perhaps another part of the U.S. Constitution, aside from the Commerce Clause and Tenth Amendment, might limit Massachusetts’s power to impose a mandate.
Rep. Michele Bachmann, by contrast, saw what Wallace was getting at. She rejected the suggestion that the Tenth Amendment allows states to impose health insurance mandates: “This is clearly an unconstitutional action, whether it’s done at the federal level or whether it’s the state level.”
It is no exaggeration to say that Bachmann’s view is sharply at odds with several decades of conservative legal thought, which in the main has been an effort to limit federal power under the Commerce Clause, while preserving state power under the Tenth Amendment. Bachmann’s libertarian argument, by contrast, turns the U.S. Constitution against both federal and state power. To the extent that she has rooted her view of limited state power in the Constitution’s text, she must be relying on the Fourteenth Amendment, the post-Civil War provision barring the states from “abridg[ing] the privileges or immunities of citizens of the United States” or “depriv[ing] any person of life, liberty, or property, without due process of law.”
Conservatives have steadfastly refused to rely on the Fourteenth Amendment as a broad check on state power ever since the Warren Court and its successors came to wield that provision as their best weapon for “constitutionalizing” liberal priorities: abortion in Roe v. Wade; homosexual sodomy in Lawrence v. Texas; perhaps same-sex marriage next in Perry v. Schwarzenegger.
With the Fourteenth Amendment effectively delegitimized, conservatives have instead turned to the Commerce Clause, and states’ rights, as the primary tool for protecting their view of liberty. Justice Anthony Kennedy is the clearest proponent of this theory. In United States v. Lopez (1995), the seminal Rehnquist Court decision enforcing Commerce Clause limits on federal power, Kennedy’s concurrence stressed that federalism promotes individual liberty by setting federal and state governments against each other: “It was the insight of the Framers that freedom was enhanced by the creation of two governments, not one.”
And in support of his view of federalism as a means to libertarian ends, Kennedy quoted James Madison’s famous Federalist 51: “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
But neither Justice Kennedy nor Federalist 51 admitted that federalism was Madison’s second-best option for protecting liberty. Given his druthers, Madison would have empowered Congress to veto state laws infringing individual liberty, a view he unsuccessfully urged at the 1787 Constitutional Convention. Months later, in a letter to Thomas Jefferson, Madison conceded that he would have preferred to see the Constitution contain an outright federal veto of state laws, as “necessary to secure individuals against encroachments on their rights” by state governments.
Similarly, in the Civil War’s aftermath Republicans pressed for a direct federal check on unconstitutional state deprivations of liberty, and they succeeded by ratifying the aforementioned Fourteenth Amendment. Their victory was muted by a Supreme Court that narrowly interpreted that Amendment less than a decade later. But in the decades that followed, the Supreme Court ultimately came to stand as a strong vindicator of individual liberty against state encroachment. Conservatives advanced this view of the Constitution until FDR’s justices finally succeeded in removing the Constitution as a direct check against state infringements of individual economic liberty.
Whether or not she consciously intended it, Bachmann’s argument against both federal and state health insurance mandates evokes those long-ago efforts to “constitutionalize” liberty against state encroachment. And she may not be alone among Tea Partiers in her dissatisfaction with the suggestion that the Constitution bars federal mandates but not state mandates. The Tea Party’s primary rallying cry has largely been liberty as such, not federalism for federalism’s sake. As Karl Rove told radio host Hugh Hewitt, Romney’s “Tenth Amendment answer” was not certain to be “satisfactory.”
Romney is committed to the position that using state power to mandate health insurance is constitutional. He argued in Ames that each state should be free to experiment, because “the right answer for every state is to determine what’s right for those states and not to impose Obama-care on the nation.” This is the theory of states as “laboratories of democracy,” which is a key feature of modern conservative legal thought.
The theory of states as “laboratories” in fact originated as a Progressive Era criticism of the Supreme Court’s federal defense of individual liberty. Justice Louis Brandeis, the greatest Progressive legal activist, famously argued that “one of the happy incidents of the federal system” is “that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Hearing those words with eyes closed, you would not know whether the speaker was Brandeis or Mitt Romney. That is no indictment of Romney; again, conservative legal theorists have come to endorse Brandeis’s rhetoric. The once-Progressive, now-conservative view of states as “laboratories” is not inherently pro-government—but it is not inherently pro-freedom, either.
Nevertheless, the modern conservative focus on Tenth Amendment federalism is so thoroughly ingrained that Romney’s defense of state authority may win support among Tea Party members, especially those who have been active in the post-1970s legal debate. “State mandates may be bad policy,” the argument goes, “but there’s nothing in the Constitution to stop them.” Indeed, in Ames no less a libertarian than Ron Paul sided with Romney over Bachmann on those grounds: The states have “leeway under our Constitution” to mandate that persons buy health insurance; “the federal government can’t go in and prohibit the states from doing bad things.”
The Tea Party members who sided with Romney and Paul over Bachmann in this debate are less suspicious of state governments than of federal judges, and that is the blind spot in Bachmann’s own constitutional vision. While she stressed at the Ames debate that she would not appoint “activist judges who legislate from the bench,” her theory that the Constitution blocks state governments from imposing mandates necessarily requires activist judges willing to wield Fourteenth Amendment “liberty” against the will of elected state officials—precisely the sort of Warren Court move that sent the Fourteenth Amendment into disrepute among modern conservatives.
As the candidates continue their debate on this fundamental constitutional question, the most interesting participant may also be the newest. Since 2009, no one has exceeded Rick Perry’s ability to anticipate the Tea Party’s predominant moods. But as Texas governor, his constitutional vision, like Romney’s, has been unhesitatingly rooted in the Tenth Amendment. At the outset of the Tea Party movement, Perry issued a statement expressing his “unwavering support for efforts all across our country to reaffirm the states’ rights affirmed by the Tenth Amendment to the U.S. Constitution.” In other ways, too, Perry’s record more clearly aligns with Romney’s and Paul’s states-rights vision, not Bachmann’s libertarian constitution.
The day after the Ames debate, when the Eleventh Circuit Court of Appeals declared the Obama-care mandate unconstitutional, the court echoed Romney, Perry, and Paul, arguing that Obamacare’s nationwide mandate prevents each state from “tailor[ing] its policymaking goals to the specific needs of its citizenry.” Tea Partiers are undoubtedly near-unanimous in agreeing that the federal mandate is unconstitutional. Their response to the notion that the Constitution frees the states to experiment with mandates of their own will be much more varied, and much more interesting.
Adam J. White is a lawyer in Washington.