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.”
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
 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