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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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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.”

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