On a night when he was the clear winner, it was only natural that Mitt Romney got off the best line of Thursday’s GOP presidential debate. “Are you familiar with the Massachusetts constitution?”
He posed that question to Chris Wallace, the Fox News panelist who had been grilling him on Romneycare, the health-insurance program imposed on Bay State residents by the former Massachusetts governor and the state’s legislature. Governor Romney’s rivals have been pounding away at the program, portraying it as the model for Obamacare — the deeply unpopular foundation for a nationally socialized health-care system, vigorous opposition to which catapulted Republicans to historic success in the 2010 midterm elections.
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For good reason, GOP presidential hopefuls see immovable opposition to Obamacare as key to wresting the Oval Office from its current occupant. Romney’s frontrunner status, they reason, owes more to the party establishment’s dubious “It’s his turn” tradition than to any groundswell of support from the grassroots that swept Democrats out in the midterms. So the strategy is to use Romneycare — particularly its dread mandate that individuals buy health insurance — to hang Obamacare and its Big Government noose around Romney’s neck. Tim Pawlenty, a candidate groping for traction, has even coined the term “Obamneycare” to highlight the similarities between the two schemes.
That’s exactly where Mr. Wallace was going. “Do you believe the government has . . . the right to make someone buy a good or service just because they [sic] are a U.S. resident? . . . Where do you find that authority in the Constitution?”
It was then that Governor Romney abruptly turned the tables, challenging his questioner’s own understanding of constitutional law — to be specific, the law laid down in a constitution that is both seven years older than the federal one and, under the GOP’s oft-claimed (but rarely practiced) small-government allegiance, more pertinent to the matter of health care.
Mr. Wallace is a Beltway habitué. That he seemed nonplussed by Romney’s retort is to be expected. In Washington, there is nothing but Washington. When they talk about “the government” they are thinking only of our soon-to-be $17 trillion–in–the–red collosus. What is surprising, though, is how little the other candidates on the stage seemed to grasp what Romney was talking about, notwithstanding their chest-pounding about slashing the size of government.
Don’t get me wrong. I’m no more convinced that Governor Romney bleeds Tenth Amendment red than I am that Ron Paul is coming around on that whole Federal Reserve thing. Romney has a significant political vulnerability, and, like a lawyer boxed in by precedents, he’s got to take his escape hatches wherever he can find them. He may have landed on the Massachusetts constitution more out of necessity than conviction.
But land there he did, and it just might save him. To make this argument, the governor, who is clearly a sharp guy, has had to wrap his brain around the principle of federalism and what it portends: concepts of state sovereignty and limited central government in a pluralistic republic.
Let’s put health care to the side. Say a governor and state legislature had enacted a scheme to establish a state religion, or at least to advantage one religion over others. One could argue that this was — or was not — unwise policy. It certainly seems as hostile to liberty as the idea of coercing a citizen to buy a commodity as a condition of citizenship. Yet, for the first 160 years of governance under the federal constitution, there would have been nothing objectionable about it under U.S. law. Until the Supreme Court suddenly decided to “incorporate” the Establishment Clause against the states, the First Amendment was no bar. The federal government, as Jefferson put it, was “interdicted from intermeddling” in matters of religion — religion was an issue left to the states and their citizens, and we trusted them to handle it responsibly.
That is the way our system is supposed to work. The federal government has a few discrete areas of national concern to regulate. The rest belong to the states and the people, to regulate or not as they see fit. In a free society, that means decisions on most matters of community life get made by the community that has to live with them — and pay for them. In a pluralistic society, that means we could have 50 different ways of doing things — meaning that if you find yourself in a state that is foolish enough to mandate the purchase of health insurance subsidized by taxes or penalties, you are free to move to some state that isn’t.
Enough perhaps for the legal and philosophical argument, but not for the argument to nominate Romney. Mitt must strongly commit to the outright repeal of Obamacare (a subject that has seemingly dropped off the radar of late) and the replacement of it with something appropriate to the 21st century.
Thanks again for a cogent reflection, Andy. I live in Massachusetts and don't agree with the Romneycare mandates and, in particular, the penalties for non-compliance. If people could not afford health insurance before Romneycare, they can't magically afford it because the Nanny states says they have to have it. And given the current financial straits the US is in, I would be much more confident with Mitt blue skying ideas for a solution than some government only executive. But framing such a Federalist/anti-Federalist argument in terms the current historically ignorant polity can understand is, indeed, the challenge. Good luck to Governor Romney with that conundrum.
McCarthy is exactly right with his statement regarding the incorporation of the most important provisions of the Bill of Rights to the States. Unfortunately, this fact has also basically nullified the original founders idea of Federalism and State's rights that existed for over 100 years before the Supreme Court began to gradually use the 14th Amendment every time they wanted to suck away the State's and the Peoples power and right to govern themselves within reason. The best solution would, once again, be a Constitutional amendment that returns the Bill of Rights, with some limited exceptions based on experience (e.g. prohibit slavery, and other human rights violations), to application only to the Federal government. But it's doubtful that will happen because our country of dumbed down zombies doesn't understand nor care about our nations founding principles or the crucial foundation of liberty - self-governance.
JoninVA -- What give plausability to the Supreme Court's imposition of the Bill of Rights on the States is the following clause in the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This is very similar to the following clause in Art. 5 Sect. 2: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The idea was on for State to recognize rules of other States for people passing through. The idea of the privileges and ammunities clause is for the Sate to recognize the rules applicable to the citizens of the United States, and those include the Bill of Rights.
I grant that the 14th Amendment muddles the federal system in a way not imagined by the Founding Fathers, but the impetus to doing so was the way black in the South were being treated after the Civil War, in particular, they were being denied their 2nd Amendment Rights. The 14th Amendment was a way to insure that blacks would be treated equally. (Of course, in Plessey v. Ferguson, the Supreme Court managed to turn the 14th Amendment on its head.)
BTW Not included in the Bill of Rights it the right to an abortion. So, I would maintain that Roe v. Wage was incorrectly (unconstitutionally) determined.
In a galaxy far far away, Republicans used to publicly advocate eliminating several Federal Departments and moving ALL welfare spending to the states via block grants.
Somewhere along the line we attracted majoritarians like Tom Delay, Roy Blunt and countless others and their only objective was winning elections and retaining power.
The current fiscal & economic climate opens the door to make right where others failed. To wit, making the Fed Gov a more efficient Gov by getting out of the bidness of state government.
If Vermont wants Gay marriage, mandatory bike to work and the banning of urinals, so be it! I aint lost nothin' in Vermont!
I visited Zermatt, Switzerland and was baffled to find the entire town had banned internal combustion engine cars. Whoa! Are they Al Gore Man-Bear-Pig devotees? No. The highly decentralized Canton Gov't decided smog might obscure the alpine vistas and they made a lot of lettuce from tourists off those mountain vistas so they'd trade more expensive now in hopes it would payoff over time with less/no smog. And I wish them well.
Just because the Left engages in Sherman-esque Total War when it comes to the culture wars does not mean we have to do the same thing to promote our ideas. Let the leftist promote utopia in Caly & when the system collapses under its own weight the more sober red states can reap the benefits. Who's afraid of democracy?
We are NOT the Nation of America. We ARE the United States of America!
A state can require auto insurance for a car driven on roads that are the property of the state, but not on a Model T parked in a private collection. If the liberty protections in the Constitution mean anything, how can a state force insurance on your body, unless the government owns your body?
Mitt Romney is a poster boy RINO. Any way you cut it he is a big government Repulican. Don't forget how he yucked it up with Ted Kennedy when he signed Romney Care. If Mitt Romney is nominated I will vote third party. If there is no third party I will not vote in the presidential race. 8 years of the big government Republican George Bush started the mess we are in today. The election of Mitt Romney would mean another 4 years of Obama lite.
Am I to understand that, if “the Constitution is the compact of the people setting forth the terms on which we are bound together as a nation”, that, if it is constitutionally modified so that, say, Abortion - which some people presume to insist is a “heinous moral wrong” - becomes not only legal everywhere, but a right which must be paid for by a special tax on everyone of 10$ a year, that situation would then be “truly reflective of the national will”, or an aspect of “what it means to be an American”??
Surely not!
“Democracy” should not be reduced to the idea of majority rule, and “what it means to be American” should not be reduced to the consequences of a remorseless chain of legal reasoning!
There is more to America, and what it means to be an American, than the Constitution. There is the Declaration, the Federalist, and furthermore a whole set of attitudes, mores and historical events. A reminder of the most obvious aspect of de Tocvilles’ thought seems necessary, i.e. the very obvious point that, unless the citizenry of a democracy is religious and of good character, there is no hope for its survival. In other words, “what it means to be an American” is by no means what the Constitution might be morphed into by a corrupt and delirious mob consisting of 3/4 of the voting population (or 49% enhanced by some ACORN-like syndicate).
So this point about Romney is hopeless. What it means to be an American, as everyone in his right mind knows, is that, apart from the obvious examples any normally educated person is familiar with, government stays the heck out of our lives - including telling us what ancient words like “marriage” mean, and penalizing us for not buying this or that. Romney’s appeal to the Constitution of Massachusetts is, exactly, an appeal to a “remorseless chain of legal reasoning” to justify something antithetical to “what it means to be an American”, no matter what a corrupt and delirious mob may one day seek to impose on Americans by reducing Democracy to majority rule.
It is a frightening lesson in how poor our civics are.
Too many people don't understand our Federalism and that the Federal Government and the State Governments are two separate sovereigns. And that each have separate sources of power.
1. The Federal Government has limited powers and can only exercise that power given to it in the Constitution.
2. State governments have the police power which means that a State can do anything it wants (unlimited power) unless its power is limited by the state constitution and (after the adoption of the Federal Constitution) by that document.
This concept is basic Civics 101, yet if hear someone say that the Federal government can require us buy health insurance because the States can require automobile insurance I think that I will scream.
Romney may be correct with regards to the Massachusetts constitution. But the purpose of the debate is to compare potential Presidents. I don't want someone who thought the individual mandates in Romneycare were a good enough idea to sign into law at any level, and who still hasn't figured out that the program was a big mistake.
Picture the debates with Obama. If the GOP nominee is Perry/Pawlenty/Bachmann/Paul/Santorum, etc., they will make an individual liberty argument that it is fundamentally wrong for government to force citizens to do something like buy health insurance. But Romney cannot make that argument. He'll have to be arguing "individual mandates are great, but they should be imposed by states instead of federal governments." That takes one of our best arguments off the table, greatly aids Obama's re-election, and makes it less likely that Obamacare will be repealed. Even if Romney were otherwise a strong candidate, this should be an absolute disqualifier.
Am I to understand that, if “the Constitution is the compact of the people setting forth the terms on which we are bound together as a nation”, that, if it is constitutionally modified so that, say, Abortion - which some people presume to insist is a “heinous moral wrong” - becomes not only legal everywhere, but a right which must be paid for by a special tax on everyone of 10$ a year, that situation would then be “truly reflective of the national will”, or an aspect of “what it means to be an American”??
Surely not!
“Democracy” should not be reduced to the idea of majority rule, and “what it means to be American” should not be reduced to the consequences of a remorseless chain of legal reasoning!
There is more to America, and what it means to be an American, than the Constitution. There is the Declaration, the Federalist, and furthermore a whole set of attitudes, mores and historical events. A reminder of the most obvious aspect of de Tocvilles’ thought seems necessary, i.e. the very obvious point that, unless the citizenry of a democracy is religious and of good character, there is no hope for its survival. In other words, “what it means to be an American” is by no means what the Constitution might be morphed into by a corrupt and delirious mob consisting of 3/4 of the voting population (or 49% enhanced by some ACORN-like syndicate).
So this point about Romney is hopeless. What it means to be an American, as everyone in his right mind knows, is that, apart from the obvious examples any normally educated person is familiar with, government stays the heck out of our lives - including telling us what ancient words like “marriage” mean, and penalizing us for not buying this or that. Romney’s appeal to the Constitution of Massachusetts is, exactly, an appeal to a “remorseless chain of legal reasoning” to justify something antithetical to “what it means to be an American”, no matter what a corrupt and delirious mob may one day seek to impose on Americans by reducing Democracy to majority rule.
An excellent article...and I agree with the author. I had not thought the health care coverage issue through that well until Romney detailed that very argument at the debate-I am not a fan of Romney but before I had just listened to the political pundits who said the 10th Amendment argument was weak and it was a cloud over his candidacy and had presumed that it would also spell trouble in the general election because it couldn't be distinguished.
I stand corrected.
I thought Romney's argument was very strong...regardless of what I hear on other blogs. I certainly fits my natural instincts, and Ron Paul even defended the right and reasoning to it. And now I don't see it as an impediment in a general election against BHO like I did before.
I'm unconvinced by McCarthy's arguments, but they're certainly worth mulling over.
The idea of individual mandates may go well beyond the idea of constitutionally adopted protections, and that's what the courts are seemlingly suggesting. The Left is saying government has the right to tell the individual what he must purchase, while the courts are indicating, no, it hasn't. If that's true, then it should be true at both the state and federal level. (In which case, in the recent debate, Romney would have been wrong and Bachmann right.)
If one wants to argue that no such prescription is in the Constitution's Amendments, it should be remembered that the founding fathers didn't think they had to spell out a prohibition for every conceivable thing government might try to do to its citizens. The Bill of Rights, in fact was thought by many as perhaps even needless, but a nice expression of boilerplate safeguards all the same.
"...that the founding fathers didn't think they had to spell out a prohibition for every conceivable thing government might try to do to its citizens."
Indeed. Luckily they're not alive to see how their simple and straightforward document has been twisted by the courts to "say" this or that about modern conundrums humans have created for themselves, like abortion and gay marriage.
