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The Tea Party’s Constitution

A federalism debate on the right.

Aug 29, 2011, Vol. 16, No. 46 • By ADAM J. WHITE
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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:

There are some similarities between what we did in Massachusetts and what President Obama did, but there are some big differences. And one is, I believe in the Tenth Amendment of the Constitution. And that says that powers not specifically granted to the federal government are reserved [to] the states and the people.

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.

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