Is Romneycare Constitutional?
Some time ago, I wrote a post entitled What is Wrong with the Individual Mandate? In it, I tried to answer a rhetorical question posed by a Romney partisan who goes under the moniker ParisParamus, who had written:
Again, why is a mandate like Romneycare less conservative than raising everyone's state income taxes to pay for the free riders? Or, why isn't Romneycare fundamentally different than having raised everyone's state income taxes and then offering a credit if you get private health insurance for not being less of a potential burden on the state? WHY?
In response, on that occasion, I wrote the following -- which I believe deserves to be read and read again:
There is a simple answer to the question posed by ParisParamus. Government exists first and foremost for the sake of our protection. Without it, our lives and our property would not effectively be our own. Government exists also to promote our well-being. For its support, however, taxation is necessary, and we have tacitly agreed that, to be legitimate, these taxes must be passed by our elected representatives. By our own consent, we give up a certain proportion of our earnings for these purposes.
The money left in our possession, however, is our own -- to do with as we please. It is in this that our liberty largely lies. Romneycare and Obamacare, with the individual mandate, changes radically our relationship vis-a-vis the government. The former presupposes that state governments have the right to tell us how we are to spend our own money, and the latter presupposes that the federal government has that right as well. Both measures are tyrannical. They blur the distinction between public and private and extend the authority of the public over the disposition of that which is primordially private. Once this principle is accepted as legitimate, there is no limit to the authority of the government over us, and mandates of this sort will multiply -- as do-gooders interested in improving our lives by directing them encroach further and further into the one sphere in which we have been left free hitherto.
Managerial progressives see only the end -- preventing free-riders from riding for free. And they ignore the collateral damage done by way of the means selected. Mitt Romney and Newt Gingrich have no understanding of first principles. For both of these social engineers, citizens are subjects to be worked-over by the government for their own good. Both men are inclined to treat us as children subject to the authority of a paternalistic state under the direction of a benevolent and omniscient managerial class.
There is, however, this difference between Romney and Gingrich. The latter may or may not fully grasp why the Tea Party rose up against the individual mandate, but he recognizes that they did so, and he knows what is good for him -- so he has now backed away from the fierce advocacy of this despotic measure that once characterized his posture. The former is more stubborn. Politically, he is tone deaf. He seems constitutionally incapable of grasping the argument, he insists that the individual mandate is consistent with conservative principle, and he will not back off.
Raising taxes to reward free riders is, of course, objectionable. We should oppose it on principle. But it does not in and of itself narrow in any significant fashion the sphere of our liberty. It is a question of the proper use of the public purse. The individual mandate sets a new precedent. It extends government control to the private purse.
In the comments, I made it clear that I thought this argument – which applies with equal force to Romneycare and its offspring Obamacare – a much more serious objection to the latter than the argument that the latter is inconsistent with the commerce clause of the Constitution (which, I believe, it is). My point was that, in judging these matters, we need to resort to first principles.
In the course of the exchanges that then took place, I suggested that Romneycare was unconstitutional under the Massachusetts Constitution. On this matter, James of England, who worked in Romney’s campaign in 2008 and supports him no less fiercely today, challenged me to “quote any informed source for, or otherwise support the claim that there is uncertainty regarding the constitutionality of MassCare under the state constitution.” In the circumstances, I was unable to do so – largely because I did not have the time to do the necessary research, and, in response, James of England argued that the individual mandate fell neatly within the “police power” left to the states as that was understood at the time of the promulgation of the Constitution of Massachusetts in 1780, and he then insisted that I “stop raising the lack of clarity as though you have some support for the claim.” In response, I wrote, “You can ask, but I will not comply -- because I know a thing or two about eighteenth-century American political thought, and I doubt very much that the Constitution drafted by John Adams would sanction the individual mandate.” This earned me the following rebuke:
Could I ask you to raise the topic the next time you talk to someone you trust on the subject? To cast cutting aspersions under the guise of authority while intentionally remaining ignorant of their truth seems against your general manner.
The police power is not defined narrowly; this is almost the definition of "police power". Rather, it grants power generally and then prohibits things thought of, much of which were not thought of by Adams, but by much later amenders. Things unconsidered are therefore generally permitted (although future generations can ban them).
And to this, I in turned responded, “Sorry, James, this will not do. Technically, you may be correct. But I know enough about the thinking of people in eighteenth-century America (on which I penned a sizable tome) to be confident that it would have been simply unthinkable to propose requiring all of the citizens of Massachusetts or any other state to spend a chunk of their own money at the direction of the government.”
I mention all of this because James brought this issue up again last night, writing in a comment on Ben Domenech’s post:
Prof. Rahe does not consider federalism to be a "substantive", or, elsewhere, "serious" difference between Obamacare and Romneycare.
More importantly, Rahe attacks the constitutionality of Romneycare, while admitting that he has no basis for this other than a sense that John Adams would have opposed mandates (despite Adams using a mandate in the Massachusetts constitution (Article III)), and occasionally uses "enumerated powers" to describe state government powers.
Leave aside the fact that, in these paragraphs, he misstates my position (as is, on occasion, his wont). The substantive claim he makes is more important and deserves examination, and I want to address it in such a way as to show that the Constitution of Massachusetts framed by John Adams and ratified by the people of that state in their town meetings in 1780 supports my position, not that of James, and that in his desperate defense of Mitt Romney James is claiming an expertise that he does not possess.
Here is the first paragraph of the preamble to that Constitution:
The end of the institution, maintenance, and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life; and whenever these great objects are not obtained the people have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness.
It needs to be read in conjunction with the first article of the Massachusetts Declaration of Rights (which follows immediately upon the preamble):
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
There are two things worth noticing – the emphasis on “natural rights and the blessings of life” in the first paragraph of the preamble and the list of “certain natural, essential, and unalienable rights” in the first article of the Declaration of Rights – among which can be found the right “of acquiring, possessing, and protecting property.”
I would submit that these two passages dovetail neatly with the argument I made about the ends of government in my earlier post, quoted at length above; and I think that you can easily see that Romneycare – which presupposes that the government of Massachusetts can dictate to its citizens how they are to spend their own money – is in breach of the Massachusetts Declaration of Rights. How, I would ask, can the property left to us after we have paid our taxes be in any respect our own if the state has the right to tell us how to spend it? And if the state can do this in one instance, what is there to prevent it from doing so in other instances?
James thinks that he has a ready response. He points to the third article of the Massachusetts Declaration of Rights, which reads as follows:
As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of the public instructions in piety, religion, and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.
That a mandate is involved is clear. But it is not an individual mandate, as James implies. It is a mandate directed to “towns, parishes, precincts, and other bodies politic or religious societies,” which is to say, it is comparable to the obligations that states impose on local governments today, and it specifies one way in which those local governments in Massachusetts are to spend the revenues they raise by taxation.
I would submit that the distinction I drew and defended in my earlier post is a matter of the greatest importance. Our liberty depends on forms and formalities. The distinction between public revenues derivative from the taxes we pay with an eye to furnishing ourselves “with the power of enjoying, in safety and tranquillity, [our] natural rights and the blessings of life,” on the one hand, and the property we have a natural right to acquire, possess, and protect, on the other, is a sacred one.
Progressives reject forms and formalities. To achieve their ends, they are prepared to run roughshod over them – and over us. John Adams and the people of Massachusetts in 1780 understood what Mitt Romney, ParisParamus, and James of England have forgotten. If we are to win the battle in which we are now engaged, we must have recourse to the first principles that the Progressives so readily discard, and we must find a standard-bearer capable of eloquently making the argument. Only then can there be a new birth of freedom. Otherwise, our destiny will be to surrender to liberal democracy’s inexorable soft despotic drift.
It is a shame that there is no one in his entourage ready and able to explain to Mitt Romney the profound damage that he did when he ushered Romneycare into existence in Massachusetts. There is nothing more impressive than when a proud man stands up to confess that, in the past, he made a terrible mistake.
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Comments:
Oct '10
Re: Is Romneycare Constitutional?
Prof. Rahe, being almost entirely ignorant of 18C Mass institutions, I wonder what "religious societies" refers to in the third article.
(I also wonder if you're being a little personal. But I guess JoE has broad shoulders, as you do, and the debate will continue on a scholarly basis.)
I'm still not sure I see that the distinction between tax revenue - the state confiscating your property and then doing something with it - and a mandate - the state telling you what you have to do with your property - as coming down to first principles. Are you saying that there is no limit to what the state can do, as long as it first taxes, but that there is a limit to what it can make you do?
Mar '11
Re: Is Romneycare Constitutional?
There is nothing more impressive than when a proud man stands up to confess that, in the past, he made a terrible mistake.
While I usually find myself in hearty agreement with you Dr. Rahe, there is little you have ever written or said that I agree with more than the above. The finest quality any leader can have is humility.
Dec '10
Re: Is Romneycare Constitutional?
That is going to leave a mark.
Re: Is Romneycare Constitutional?
genferei: Prof. Rahe, being almost entirely ignorant of 18C Mass institutions, I wonder what "religious societies" refers to in the third article.
(I also wonder if you're being a little personal. But I guess JoE has broad shoulders, as you do, and the debate will continue on a scholarly basis.)
I'm still not sure I see that the distinction between tax revenue - the state confiscating your property and then doing something with it - and a mandate - the state telling you what you have to do with your property - as coming down to first principles. Are you saying that there is no limit to what the state can do, as long as it first taxes, but that there is a limit to what it can make you do? · 25 minutes ago
There are limits to what the political community can do in taxing, but we, acting through our representatives, have broad (but not unlimited) discretion in this particular. We have none in telling individuals how they can spend their own money.
Re: Is Romneycare Constitutional?
Gus Marvinson:There is nothing more impressive than when a proud man stands up to confess that, in the past, he made a terrible mistake.
While I usually find myself in hearty agreement with you Dr. Rahe, there is little you have ever written or said that I agree with more than the above. The finest quality any leader can have is humility. · 25 minutes ago
Yes, and for all of his faults (which are legion), Newt Gingrich at times displays that humility. If only he . . .
Dec '10
Re: Is Romneycare Constitutional?
Prof. Rahe, you might also note that the framers of the Massachusetts Constitution felt it necessary to carve out a specific authorization for the mandate for religious institutional support. That would indicate that they did not believe that their government had the power to issue mandates, but that in this one specific instance, as the language says, "the people have the right" to authorize the Legislature to issue a mandate for this specific purpose.
Indeed, the language implies that under this Constitution, the people themselves do not reserve the right to authorize the Legislature to issue any other mandate: if they did, the article in question would be moot, as any and every mandate would be possible.
Thus, the existence of a mandate in the Massachusetts Constitution for one purpose isn't an argument that the Constitution favors mandates for any other purpose -- it's an argument that all other mandates are prohibited because they are not expressly permitted.
Nov '11
Re: Is Romneycare Constitutional?
Question: If we take this line of argument (which I agree with), do we not have to take a close look at compulsory education?
There is a distinction, in that most people today take advantage of the tax-funded public education system, rather than spending their own money. But that is where Obama's mandate (though not Romney's) is intended to take healthcare, as well.
Re: Is Romneycare Constitutional?
I love this post -- and just tweeted it, because I have been arguing for months with Romney supporters that Romneycare is noxious and tyrannical on a state level and that the 10th Amendment doesn't save it. The federal government is not the only governmental entity capable of tyranny and this is an example of it.
When they have responded with, "It's largely irrelevant anyway because Romney has promised to repeal Obamacare," my response has been:
"In the first place I don't believe his heart is in that pledge and one of his advisors -- I think it was Norm Coleman -- said he probably wouldn't honor it." But more importantly to me, his steadfast commitment to Romneycare is not as troubling as an indicator that he might not repeal Obamacare as it is as evidence that he is not, at heart, a conservative."
Like Prof. Rahe, I too, have been mystified by Mitt's stubborn, defiant refusal to admit his mistake here, which means that he is either too proud to admit it -- not a good sign -- or truly has statist proclivities (which is worse). Great, great post.
Sep '10
Re: Is Romneycare Constitutional?
Leigh: Question: If we take this line of argument (which I agree with), do we not have to take a close look at compulsory education?
There is a distinction, in that most people today take advantage of the tax-funded public education system, rather than spending their own money. But that is where Obama's mandate (though not Romney's) is intended to take healthcare, as well. · 4 minutes ago
The answer is, yes. Though I'm certain that none of my good protestant friends harbor any animus toward me and my fellow catholics (and are either unaware of or repudiate the anti catholicism present in the United States before the 20th century), if you google "compulsory education anti catholic" you'll come up with a wealth of links and information.
Edit: I should also have mentioned that there has also been persecution of protestant schools as well, but I didn't want to spawn a discussion that really merits its own post, merely highlight that compulsory education is indeed something that needs to be looked at closely.
Edited on February 18, 2012 at 8:10pmJul '10
Re: Is Romneycare Constitutional?
Then how do we explain the existence of article 23 Stuart:
No subsidy, charge, tax, impost, or duties, ought to be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature.
Clearly, this presupposes that future impositions can be legislatively affixed, or it has no meaning.
Limits to potential impositions obviously exist (eg Article 27 addresses quartering) but how Romneycare necessarily falls afoul of MA Constitutional limits remains, to me, a mystery.
Dec '10
Re: Is Romneycare Constitutional?
David Limbaugh:...
When they have responded with, "It's largely irrelevant anyway because Romney has promised to repeal Obamacare," my response has been:
"In the first place I don't believe his heart is in that pledge and one of his advisors -- I think it was Norm Coleman -- said he probably wouldn't honor it." But more importantly to me, his steadfast commitment to Romneycare is not as troubling as an indicator that he might not repeal Obamacare as it is as evidence that he is not, at heart, a conservative."
Like Prof. Rahe, I too, have been mystified by Mitt's stubborn, defiant refusal to admit his mistake here, which means that he is either too proud to admit it -- not a good sign -- or truly has statist proclivities (which is worse). Great, great post.
Yes, David. Doc Rahe often says what I'm thinking, just a lot better than I even think it. In my own words, the constitutionality of Romneycare has never been my concern with it. It has always been that Romneycare isn't conservative. It badly distorts the relationship between citizen and government. And Romney is either oblivious to the matter or unrepentant over it.
Re: Is Romneycare Constitutional?
To amplify and clarify my previous post "by 10th Amendment doesn't save it," I only mean that even if the State of Massachusetts had the constitutional right to implement Romneycare, that doesn't insulate it from the criticism that it is still a statist program. Prof Rahe provides an added bonus in also addressing the constitutionality of the program under Mass law. But for my purposes -- assessing Newt Romney's desirability as a GOP nominee, what matters most is that it's a statist notion and he nevertheless steadfastly and stubbornly defends it behind the excuse that his constituents like it. Besides, don't forget that he goes much further than that, acting like his program is darn near the best thing since sliced bread. That's very troubling to me and hard for me to get past and one reason I am much less favorably disposed to Romney than in 2008 when I hadn't studied this particular matter as much.
Jun '10
Re: Is Romneycare Constitutional?
It's all fine and well to defend the finer points of constitutional law. But what happens when the chief executive reneges on his pledge to "preserve, protect, and defend the Constitution" of the United States? We are faced with by an opponent who has stated that our founding document is "fundamentally flawed," and an ideology that supports legislating from the bench and citing foreign precedents in its decrees. I want a candidate who will defend the rule of law and constitutional government itself. It is of some value to argue individual cases, but let us not get lost in the minutia. Let us put First Principles first!
Sep '10
Re: Is Romneycare Constitutional?
Like Prof. Rahe, I too, have been mystified by Mitt's stubborn, defiant refusal to admit his mistake here, which means that he is either too proud to admit it -- not a good sign -- or truly has statist proclivities (which is worse). Great, great post.
In Peter Robinson's book, How Ronald Reagan Changed My Life, Peter makes reference to the heavy hitting deal makers in the administration - James Baker, Donald Regan et al - and talks about how essential they are to effective governance but that they need to be held in check and balanced against the purists (of which it sounds like most of the speechwriters are).
Based on the defense of Romney that I've read on Ricochet, I believe the argument comes down to: Massachusetts was about to go off the cliff, Romney cut the best deal he could and gave them more conservatism than they would have otherwise had. While that may be true, I'm still unclear (or mystified) as to how the ability to navigate that dynamic grants him the credibility to win the highest office in the land. Perhaps I'm missing something obvious, but I'm just not seeing it.
Re: Is Romneycare Constitutional?
I might add one other thing that comes to mind both because a) Dr. Rahe, as usual, urges us to return to first principles and I agree, and b) people have responded to this post on Twitter saying, simply, "Romney is a fiscal conservative."
Here again, I think it's important that we get beyond the superficialities. Being an economic conservative involves more than just a commitment to getting our budgets in balance and opposing oppressive, growth-stifling taxes. It also involves a commitment to freedom -- an opposition to coercive government. Theoretically, liberals can favor a balanced budget (though none seem to do so today),and still not share the conservatives' view of limited government and how that is critical to ensuring we will enjoy our God-given rights and liberties.
In a sense, this is even more basic than constitutionalism because while the Constitution enshrines these ideas, the ideas precede it -- they are, according to our founding, liberty tradition, from God.
Re: Is Romneycare Constitutional?
Pseudodionysius:
In Peter Robinson's book, How Ronald Reagan Changed My Life, Peter makes reference to the heavy hitting deal makers in the administration - James Baker, Donald Regan et al - and talks about how essential they are to effective governance but that they need to be held in check and balanced against the purists (of which it sounds like most of the speechwriters are).
Based on the defense of Romney that I've read on Ricochet, I believe the argument comes down to: Massachusetts was about to go off the cliff, Romney cut the best deal he could and gave them more conservatism than they would have otherwise had. While that may be true, I'm still unclear (or mystified) as to how the ability to navigate that dynamic grants him the credibility to win the highest office in the land. Perhaps I'm missing something obvious, but I'm just not seeing it. · 5 minutes ago
Yes, and I want to repeat a point I earlier made: Romney doesn't limit his defense to: "It was the best I could do against those darned MA libs." He stands by Romneycare as if it were the Kemp-Roth tax bill
Sep '10
Re: Is Romneycare Constitutional?
If you are saying that the government can impose a $600 healthcare tax on all and then give a $600 rebate to those who have health insurance and that this would not infringe on our liberty, but a $600 fine for not having insurance would I must disagree. What we are witnessing now is a result of liberty being infringed when wage a price controls were enacted during WW2. Our system of paying for healthcare is primarily influenced by this and the decision to not consider employer provided healthcare to get around these controls as wages. When government exceeds its proper bounds the consequences are far reaching and sometimes take decades to develop. The mere fact that serious discussions are taking place about if Romney-care infringes on personnel liberty and is a proper function of government is a indication of how far we have traveled down the road to serfdom. Romney has not backed away from Romney-care because he thinks it is a legitimate function of government. The only question I have is does he think the same of Obama-care? I think he does, but is lying about it.
Jun '10
Re: Is Romneycare Constitutional?
The arguments in this thread indicate that Mitt Romney lacks an appreciation for the proper role of government. My verdict, therefore, is that Mr. Romney is too fundamentally flawed as a candidate to be the conservative standard-bearer and the next president of the United States. Case closed, at least in my judgement.
Edited on February 18, 2012 at 9:32pmNov '11
Re: Is Romneycare Constitutional?
The difference between Romneycare and Obamacare really is the intent. Romney -- however badly he did so -- was trying to include free-market principles, and intended it to go no further. (In fact, the legislature took it further than he supported -- and he would help himself if he explained how more explicitly.) Obama and Pelosi designed theirs to go much, much further. Their goal is different.
That is not a defense of Romneycare at all. But if he is the nominee -- which is still likely -- it matters.
May '10
Re: Is Romneycare Constitutional?
Just saying hi. Hi!