Governor Romney’s 10th Amendment defense of Massachusetts’s health care reform legislation serves well to clarify the true nature of the fundamental political question that confronts Americans in year 222 under the Constitution. That is a simple question with a profound and somewhat complex answer – namely, does the idea of limited government require acknowledging that some matters of evident public benefit are nonetheless beyond the capacity of government to perform?
The current national administration and Governor Romney give the same answer to that beguiling question: no. Each embraces an argument of “public necessity” to justify governmental undertakings in response to perceived public need, subject only to limitations that derive from the casuistry of federalism. Both consider it justifiable for government to command individuals to purchase health insurance; both derive the authority, curiously, from the 10th Amendment, the language of which might seem to the ordinary intelligence to restrict the power of government. We will see, however, that the prevailing reading today takes that language not as restrictive but as a carte blanche for policy making based on a “public necessity” rationale.
The language of the 10th Amendment is straightforward: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Either this language means that undelegated powers are reserved, whether to the states or to the people, and therefore excluded from exercise by the national government. Or, this language means only that the states or the people get first dibs on unspecified and indefinite powers of government.
On the former view there are legitimate political powers that may be exercised exclusively by the states or the people; on the second view the national government may exercise those powers in any case where the states or the people have not previously occupied the ground. In other words, the 10th Amendment is read by some not as excluding the operation of federal power but rather only as establishing a default condition (power exercised by the states or the people), the absence of which entitles the national government to act. The Lopez Supreme Court opinions in 1995 make this quite clear! U. S. v. Lopez (000 U.S. U10287 [(1995])
The grounds for this tension in interpretations of the 10th Amendment arise from the view that there are public purposes that the Constitution both intends to see served and also intends that government shall serve them. That is the underlying basis of the “public necessity” rationale, and it means that the Constitution does not envision as a political possibility the simultaneous recognition of a “public necessity” and the illegitimacy of a governmental response to that “public necessity.” Governor’s Romney’s 10th Amendment defense of health care reform, therefore, builds rather on this reading of unlimited governmental power than upon a reading of limitations on governmental power.
What, then, can it mean to say that the Constitution establishes a limited government and not an independent sovereign, if there do not exist some aspects of public life independent of governmental regulation upon a plausible pretext of “public necessity?” Is it sufficient to argue that requiring decisions to be made via a complexity of institutional and individual deliberations alone produces a moderating effect upon government, and that limited government is really nothing more than government based on the “second thought?” Assuredly, there is some safety for individuals that results from enforced deliberation. But one may safely reason that for the founders of the United States, there was a clear and coherent preference to exclude the force and action of government in substantial areas of personal and public life. The evidence for this preference is undeniable as it eventually took shape in the 1st Amendment to the Constitution, which addresses the areas of speech (including press), religion, and assembly. But that, too, gives one pause, as we reflect that in each of these areas there arise perceived “public necessities” that consistently give rise to legislative and regulatory activities predicated upon the assumption that the “guarantee” can be trumped by the demonstration of public urgency. Campaign finance, anyone? In short, the prevailing basis of contemporary constitutional interpretation is the fabled “raison d’état.” While the basis of constitutional interpretation proposed at the founding was the as yet unattained “sovereignty of the people.”