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The Tenth Amendment Run Amok?

In between “gotcha questions” and the Pawlenty-Bachman slurfest, an interesting discussion actually occurred during the Fox News presidential debate staged in Iowa on Thursday night (8/11/2011). It concerned Tim Pawlenty’s quite valid criticism of Mitt Romney’s role in expanding government healthcare in Massachusetts. During Romney’s term as governor, he signed into law a state healthcare plan that served as the basis for what is popularly known today as “Obamacare.”

Romney replied with a defense based upon the Tenth Amendment to the US Constitution, saying that Massachusetts passed a law that was right for Massachusetts, but that President Obama forced a “one size fits all solution” on the entire nation, usurping the powers reserved to the states or the people.

Calling him a “constitutional expert,” panelist Chris Wallace asked Congressman Ron Paul whether the states “have a constitutional right to make someone buy a good or a service just because they are a resident.” Paul replied,

“No, the way I would understand the Constitution, the federal government can’t go in and prohibit the states from doing bad things and I would consider this a very bad thing. But you don’t send in a federal police force because they’re doing it and throw them into court.”

Rick Santorum replied that this argument represented “the Tenth Amendment run amok” and quoted Abraham Lincoln that “the states don’t have the right to do wrong.” He argued that the United States is a nation built upon moral laws, implying that he would support the federal government overriding the state government if an action of the state violated those moral laws.

So, what moral law does “Romneycare” violate and should the federal government step in and intervene?

For libertarians, many aspects of both Romneycare and Obamacare violate the moral law of non-aggression. It initiates force against individuals who have not aggressed against others by forcing them to buy a product. It forcibly steals their money to buy healthcare for other people. It forces them to pay for a government-run “exchange” which distorts the market and privileges government-connected health insurers.

Whether most conservatives see it from this perspective is not clear – they rarely make arguments based upon rights, rather than results. But Rick Santorum believes that Romneycare is immoral, by whatever moral standard he is using.

So, let’s assume that Romneycare does violate an underlying moral law that precedes government and violates the rights of the individuals in Massachusetts. As a libertarian, I certainly agree that it does. I also agree (and I don’t get to say this much) with both Rick Santorum and Abraham Lincoln that “the states don’t have the right to do wrong.” Violation of the rights to life, liberty, and property are wrong regardless of whether they are perpetrated by federal, state, or local governments.

But that’s not what Congressman Paul said. Paul did not assert that the state government had any rights. He indicated that the federal government does not have the power to override the states on this issue. This is a crucial distinction to make if one wishes to understand the Tenth Amendment and why violating it has been the chief cause of the national crisis we find ourselves in today.

The Declaration of Independence states that governments derive their just powers from the consent of the governed. It doesn’t talk about government rights because they do not exist. Governments don’t have rights. Only people have rights. Governments are invested with specific, limited powers by the people who establish them. Those powers originate in the people and are delegated to the government for the purpose of securing their rights, as the Declaration also states. If a power is not specifically delegated to the government, the government cannot exercise it. To do so is to exercise power without the consent of the governed.

For the men who declared independence from Great Britain, the consent of the governed was the only way to reconcile government power with liberty. The government was only allowed to exercise power that the people agreed to delegate to it. The powers enumerated in the Constitution are those that have this consent, given through the representatives who drafted and ratified it.

Many libertarians today reject the idea that a majority vote can substitute for the consent of the individual. Therefore, they reject all government as the exercise of arbitrary power. Even those who do not hold this view must recognize that calling ratification of the Constitution by majority votes in the state legislatures “consent of the governed” still requires an extremely elastic definition of the word consent. But at least there is some argument to be made that the powers delegated in that document were agreed to by the people.

There is no argument to be made that powers not delegated in the Constitution have the consent of the governed. That is why there is an amendment process; so that new powers can be delegated to the federal government if a majority of the states truly wish to do so.

An examination of the powers delegated to the federal government reveals that they mainly deal with issues outside the states. Power is delegated to create armies and navies to defend the republic against invasion. Power is delegated to regulate interstate commerce, which was intended to prevent protectionism between the states. There is nothing there that allows the federal government to regulate anything within the states. As Thomas Jefferson said, “I believe the States can best govern our home concerns, and the General Government our foreign ones.”[1]

What does all of this have to do with Romneycare? Well, it means that Ron Paul was right. The government doesn’t have the power to “prevent the states from doing bad things.” Why not? Because the people of those states never consented to give the federal government that power. The federal government exercising powers not delegated to it, even to repeal a bad law, is not substantively different than Russia or China interfering in the legislative process of a state. Exercising power without the consent of the governed is tyranny, regardless of who perpetrates it.

Of course, there is always the urge to allow the federal government to exercise this power on those rare occasions when it is actually overriding a bad state law, instead of writing bad laws of its own. As Kevin Gutzman documents in his book, The Politically Incorrect Guide to the Constitution, the states originally had a lot of internal laws that people today might not necessarily agree with. For example, some of the states had state religions. The Massachusetts Constitution originally required people to attend religious instruction. While libertarians would disagree with those laws, allowing the federal government to interfere is not the answer. Once that Pandora’s Box is opened, you are on the road to a $3.8 trillion a year federal government with a $14 trillion debt and $100 trillion in unfunded liabilities. Exercising non-delegated powers was the train that brought it here. It also constitutes the destruction of our liberty.

As I’ve said before, the Constitution itself was an enormous expansion of government power at the time. However, even its delegation of powers to the federal government had limits. Today, no limits are recognized. If the federal government can ever be fixed, those limits have to be restored. Individuals, local governments, and state governments all do bad things. However, a federal government with unlimited power is not the answer. We’ve tried that for the past one hundred years. Not only is it time to start enforcing the Constitution’s limits on federal government power; it’s time to start imposing new ones.

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

© Thomas Mullen 2011

[1] Jefferson, Thomas Letter to Justice William Johnson June 12, 1823 from Jefferson Writings Literary Classics of the United States edited by Merrill D. Peterson pg. 1476

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To be fair, residents of

To be fair, residents of Mass. are thrilled with Romneycare. They've got very good healthcare there.

I do think one has to look at the 14th amendment, which extended a lot of federal power over states. I don't think it allowed the federal government to stop any "bad action" by the states, but certainly some.

On some issues, there has to be a moral question. Ron Paul believes abortion is murder. Yet, he believes that the federal government couldn't and shouldn't ban abortion nationwide. Really? You don't think we should have an anti-murder law in this country? You think that if the states decided to exterminate some people, the federal government would have no authority to step in?

Plan for eliminating the national debt in 10-20 years:


Specific cuts; defense spending:

Federal Power

What use is the Federal Government if it is not empowered to enforce the rights of the people within the boundaries it governs? If it fails to protect the rights of the person it fails at its job. The federal government cannot prevent the states from doing stupid things as long as those stupid things are within the confines of the Constitution. But once they step outside those confines then the Federal Government can legally step in and protect the citizens of the nation against the unconstitutional actions of the state. The States do not just serve as a balance against federal tyranny but the federal government acts as a balance against state tyranny as well. I still consider one of the greatest evils that ever happened in the US was in the 1830s when the Mormons were legally hunted, exterminated, and driven from the state of Missouri by the Executive Order of the governor, Lilburn Boggs. They property and lives were taken from the by the governmental mandate of the state in direct violation of their Constitutional rights. Yet when the Mormon leader Joseph Smith went to President Van Buren for help in defending their constitutional rights Van Buren told Smith "I can do nothing for you." and made the exact argument you made here.While not the only pogrom launched against minorities in America (or even the only one against the Mormons)it is incredibly evil. If such an argument allows for these type of evils and any others it isn't just morally wrong, it is obviously unconstitutionally wrong as well. The Constitution is to protect against all threats to our God given rights both external and internal and the Federal Government is authorized to protect those rights as the government instituted by the people to protect its rights.


I respectfully disagree

I respectfully disagree, to the fact that each State had to ratify the Constitution of the United States; meaning they will uphold the Constitution. So, States are unable to Practice Unconstitutional practices as-is the Federal Government. If forcing someone to buy health insurance is Unconstitutional then neither the States nor the Federal Government can do it. It's like saying the the Federal Government can't ban the 2nd amendment but the States can; and the Federal Government can do nothing to rectify this.

It is my opinion that the major problem with the Constitution is that people are using the wrong dictionary to understand it. We cannot use a modern definition, of a word, and claim that this modern definition is what is meant in a document that existed before that particular definition did.

Regulate: meant to make regular, or even. Meaning that one particular State couldn't show preferential treatment to any-other State. All States had to treat every-other States the same. If they didn't the Federal Government could force them to.

State: meant a self-contained independent entity, e.g. Country, or Nation.

The Federalists believed that the hierarchical government should be able to exert some amount of force over the States. While the Anti-Federalists believed that the hierarchical government could not exert force on the States.
This is not the only difference, however, it is a major difference; which does apply here, since we have a "Federal" Government.

Just my two cents.

The thing is, the founders

The thing is, the founders themselves had mandated health insurance for sailors, paid for army's to defend traders, taxed finished goods, funded exploration into newly acquired lands, established the collection of scientific data, etc.

So even they seem to have believed that regulate didn't just mean "make even".

Plan for eliminating the national debt in 10-20 years:


Specific cuts; defense spending:

Tom Mullen's picture

State: meant a self-contained independent entity, e.g. Country,

You are correct here. This is a very confusing concept in some respects, but you're right and you're wrong. Forcing people to buy healthcare is wrong. It violates the natural right of each person to dispose of his own property as he sees fit. However, there is no power delegated to the federal government to stop States from doing so. It is not a power prohibited to the states by the Constitution, nor a power delegated to the federal government. Therefore, although it's very wrong, it is not within the power of the federal government to intervene.

It is very much analagous to the US government intervening in the affairs of Middle Eastern nations on the pretense of bringing "freedom" to them. Should the Middle Eastern people be free? Absolutely. Should the US government force them to be free? Absolutely not.


I agree and think that's exactly what Dr.Paul meant by saying the Feds don't have a right to stop the states from doing wrong. That statement in no way condoned the states doing said wrong.

As for the Feds protecting our rights, I believe that's limited to a National threat.

States are much easier to deal with when stepping out of line and being separated and sovereign as they were meant to be offer much less of a threat as a whole until the day they would become a centralized power to which we have the Fed.

I don't think for a second that by giving the power back to the states that all will be well but as the Founding Fathers saw and I believe as well..It would be much less centralized. Smart fellas they were.

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What's the difference...

... between forcing everyone to buy health insurance, and taxing everyone a flat rate amount and using it to buy health insurance? From the perspective of the end-user/voter/citizen, that is.

The Federales don't have the power to force you to buy something because that's not in their list of enumerated powers (perversion of the Commerce Clause be damned!)

The states, on the other hand, are under no such impediment. The idea is that the voters are "close enough" to state government to decide what they want - and people are free to vote with their feet. So if Massachusetts has universal health care and a tax, and I don't like that, I move across the border to Vermont. Then when I get sick, I can move across the border to Taxachussetts and take advantage of their program. With everyone deciding to do that, the program soon collapses. But if you force the issue on the Federal level, there's nowhere to run.

It's an interesting question, because the Feds could presumably pass a new "tax", get the money for health care, and proceed as before. It's just that you'd find fewer votes for a new "tax" than for "universal health care" - though they be the same thing.

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Thank you, Tom

for so excellently stating the difference between "rights" and "powers". This is a distinction I don't think many people understand.

I think I'm gonna go buy your book!

I'll give as much respect to my elected officials as they give to the Constitution!

I believe Santorum wrongly use the word rights in place of Power

however you and RON have a correct interpritation BUT, please explain how we would get rid of a BAD STATE LAW such as forced healthcare? You forgot to illude. Do we go to war ?
Who negotiates, who decides a judgement; for the Courts are employed by the States. Please open my eyes.

The federal government was introduced for only ONE REASON. To do what the States could NOT do for themselves. Along the path of time we have lost this important fact. Now the Supreme Court is employed by the Federal government , so where are we as citizens to go to get a fair deal?
I am to be protected from fellow citizens run amuck.
I can only seek correction by Court law or go to war. So what is a citizen to do? Catch 22
Is it designed to force my hand or for the governmet to excuse itself?
ANY RATIONAL person would ask the same.

How to Deal with Romneycare

Two basic ways to get rid of a bad state law:

  1. Convince people to vote against it (or to repeal it), or,
  2. Move to another state.

Keep in mind that while YOU may consider a law the spawn of... Romney, others must think it's a good idea, or they'd have voted against it too.

Now let's look at RomneyCare. Suppose 70% of the sheeple think it's a WONDERFUL idea, but the 30% who think it sucks (because they'd be paying for it) so bad they are willing to leave the state... and they do.

Now Taxachussetts has lost 80% of their tax base (because, of course, the top 30% pay at least that much in taxes). You now have a state in a power dive to bankruptcy. Meanwhile, Vermont, where many of the people who voted with their feet went, has a sudden influx of tax dollars. Taxachussetts is in the ditch. It won't get out for decades. Other states see this and think, "That universal healthcare BS is some BAD mojo".

The difference between bad laws on a state (or even county) level is that you can move. The barrier to leaving your country is much higher than the barrier to crossing state lines.

But how about a real world example of this principle in action? I believe the criminals in Chicago recently raised income taxes by 66%. Judge their success for yourself.

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"impairment of right to contract" would have been nice in answer

When you are purchasing health insurance, you, by definition, are entering into a contract. You pay x dollars a month and the insurance company supplies you with a certain type of health care coverage. The courts have long recognized that one cannot be "forced" into a contract. I'm sure there is some penalty for not doing so in the peoples republic of Mass. This then becomes a contract formed under "duress" and voids the contract. Why someone hasn't challenged this law in the courts on this basis alone is beyond me. All this should have been included in RP's answer. Maybe someone on the "inside" can get this message to the campaign so a portion of this answer can be utilized should a similar issue arise in the future. I'm no lawyer, but I'm fairly certain contracts made under duress have no standing. Run it by the legal team first and see if what I said is true and find out what the penalty for not purchasing health insurance in Mass. is.