Adam J. White offers an interesting article in the latest Weekly Standard about the intricate constitutional debate stemming from the recent Iowa presidential debate. White suggests the Tea Party’s strong interest in the Constitution deserves much of the credit.
Whether or not she consciously intended it, Bachmann’s argument against both federal and state health insurance mandates evokes those long-ago efforts to “constitutionalize” liberty against state encroachment. And she may not be alone among Tea Partiers in her dissatisfaction with the suggestion that the Constitution bars federal mandates but not state mandates. The Tea Party’s primary rallying cry has largely been liberty as such, not federalism for federalism’s sake. As Karl Rove told radio host Hugh Hewitt, Romney’s “Tenth Amendment answer” was not certain to be “satisfactory.”
Romney is committed to the position that using state power to mandate health insurance is constitutional. He argued in Ames that each state should be free to experiment, because “the right answer for every state is to determine what’s right for those states and not to impose Obama-care on the nation.” This is the theory of states as “laboratories of democracy,” which is a key feature of modern conservative legal thought.
The theory of states as “laboratories” in fact originated as a Progressive Era criticism of the Supreme Court’s federal defense of individual liberty. Justice Louis Brandeis, the greatest Progressive legal activist, famously argued that “one of the happy incidents of the federal system” is “that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Hearing those words with eyes closed, you would not know whether the speaker was Brandeis or Mitt Romney. That is no indictment of Romney; again, conservative legal theorists have come to endorse Brandeis’s rhetoric. The once-Progressive, now-conservative view of states as “laboratories” is not inherently pro-government?—?but it is not inherently pro-freedom, either.
Nevertheless, the modern conservative focus on Tenth Amendment federalism is so thoroughly ingrained that Romney’s defense of state authority may win support among Tea Party members, especially those who have been active in the post-1970s legal debate.
North Carolinians interested in the Constitution can, of course, learn more from one of the Citizen’s Constitutional Workshops Michael Sanera and Troy Kickler have been conducting across the state. The next one is scheduled Sept. 10 in Sanford.
