Michele Bachmann knows that the Constitution prohibits the states from imposing health-insurance mandates. She just doesn't know what part of the Constitution does this. But she's open to suggestions.
That was the bottom line of her interesting exchange yesterday, at the South Carolina GOP presidential candidates forum, with Robert George.
At a previous debate in Iowa, Bachmann argued that the Constitution bars not just the federal government, but also the states, from imposing individual health-insurance mandates. As she said in Iowa, a mandate "is clearly an unconstitutional action, whether it’s done at the federal level or whether it’s the state level."
Her political motivation is obvious -- she is stirring up Tea Party resentment against Romneycare's individual mandate -- but the greater implications of her argument are much more intriguing.
Simply put -- and as I sketched out in a WEEKLY STANDARD essay after the Iowa debate -- Bachmann's argument is a sharp break from the last several decades of conservative legal argument. Since the 1970s, conservatives have argued that the Constitution strictly limits the federal government's powers, not the states' powers. And so (as Mitt Romney argues), a federal individual mandate violates the U.S. Constitution's Commerce Clause, but a similar state mandate is perfectly lawful under the U.S. Constitution's Tenth Amendment.
In my prior essay, an attempt to flesh out what Bachmann might be thinking, I suggested that "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.'”
This libertarian view of the Constitution, limiting both the federal and state government, certainly has support in certain Tea Party corners, among those dissatisfied with Mitt Romney's suggestion that state-level health care mandates are perfectly constitutional. Still, Bachmann's argument is a sharp break from mainstream conservative legal thought. Ever since the Warren Court and its successors enforced their activist interpretations of the Fourteenth Amendment and other vague constitutional provisions in the 1960s, conservatives have balked at employing equivalent constitutional theories in advance of conservative political ends. Was this really what Bachmann has in mind?
At yesterday's South Carolina forum, we learned the answer. Professor George pressed her to explain her theory of the Constitution:
GEORGE: And do you believe that the national Constitution forbids states from doing [imposing a health-insurance mandate]?
BACHMANN: I believe that it's inherent in the Constitution.
GEORGE: In the national constitution?
BACHMANN: Yes, I do.
GEORGE: So to say it's inherent sounds like there's not a particular provision you can point to?
BACHMANN: Well, I'm sure you could enlighten me as to that provision.
GEORGE: Well, I wanted to know what the provision was.
So the Constitution prohibits Romneycare, but she can't find the specific part of the Constitution that says so. This is a far cry from her comments in January -- specifically, during the controversy of the House's recitation of the U.S. Constitution -- that "the words of the Constitution mean what they say they mean."
It's a shame that Professor George didn't try to answer the question for her. He is not unaware of the Fourteenth Amendment's potential as a strong protection of American life and liberty against state deprivation. In fact, at the very same debate, he asked the candidates whether they would support a federal law enforcing the Fourteenth Amendment's protection of life by prohibiting states from allowing abortion. (Bachmann, Gingrich, and Cain answered "yes"; Romney and Paul, "no.")
If Bachmann and others want to employ the Constitution, either through Congress or the courts, as a direct check on state power, then their position has deep Republican roots. The Fourteenth Amendment was, after all, one of the first great accomplishments of the Republican Party, and conservatives invoked its authority against state regulation through the Progressive Era.
But that strategy, if successful, would have serious consequences. First and foremost, it would give unelected judges -- or, as Bachmann has called them, "black-robed masters" -- immense power over state and local communities. Which is the more disconcerting prospect: states imposing inappropriate laws, or federal courts sitting in judgment of the states?
In the Tea Party era, that question is no longer as simple as it once seemed.
Adam J. White is a lawyer in Washington, D.C.