December 15, 2018

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 Massachusetts passed a law that was right for Massachusetts, but 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 paraphrased Abraham Lincoln saying “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 Romneycare is immoral, by whatever moral standard he is using.

So, let’s assume 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 the state government had any rights. He said 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 the people agreed to delegate to it. The powers enumerated in the Constitution are those which 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 new powers can be delegated to the federal government if a majority of the states truly wish to do so.

The powers delegated to the federal government deal primarily 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 merely to prevent protectionism between the states. There is no power delegated there allowing 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? It means 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 from 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.

There is always desire 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. Some of the states had state religions. The Massachusetts Constitution originally required people to attend religious instruction. While libertarians would vehemently 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 it rode in on.

As I’ve said before, the Constitution itself was an enormous expansion of government power at the time. But even its delegation to the federal government of vast new powers  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. But 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.


[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

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

What is Limited Government?

It is certainly encouraging to see a massive grassroots movement demanding that government cease its exponential growth. The Tea Party movement has already flexed its muscles in some high-profile elections, and there is widespread consensus that it will be a factor in the 2010 elections. For the first time in over a century, there is a critical mass of people actually demanding limited government.

However, there is one very important question that must be answered. What is limited government?

The answer supplied by Republicans for the past several decades has been “lower taxes, balanced budgets, and less government spending.” These are all wonderful ideas, although Republicans have hardly put them into practice when given the reins of power. Afterwards, their supporters have chastised them for “not being true conservatives,” although I’m not sure that the conservative movement has ever really been about “small government.” In any case, the fundamental assumption underlying conservative rhetoric is that the limits of government are quantitative. One is led to believe that if the government would only spend less on health care, education, stimulus packages, and other programs (excluding the military, of course), that freedom, peace, and prosperity would be just around the corner.

However, limited government has nothing to do with how much money government spends, but rather what government is allowed to spend money on. Restoring freedom and constitutional government depends not just upon cutting taxes, but redefining what services government can legitimately tax its citizens to underwrite. At one time in America, there was a clear and unambiguous answer to that question: taxation was limited to underwriting the defense of life, liberty, and property.

Politicians have to mince words in order to keep fragile constituencies together, so they rarely make unambiguous statements. When one faction among their supporters opposes a new government health care program, they cannot agree on principle and say that government should have no role in providing health care. This would alienate another faction among their supporters that are currently benefitting from an already well-established government health care program. So, the politician uses words like “sensible” and “market-driven” in order to attack his opponent’s program without acknowledging the principle that it violates whether administered “sensibly” or not.

Truly limited government can only mean one thing: enforcing the non-aggression principle, known to our founders as “the law of nature.” Jefferson said that no man has the right to commit aggression on the equal rights of another, and that is all from which the law ought to restrain him. As government is merely the societal use of force, its limits are no different than the limits on the use of force by an individual. An individual may use force only in defense against aggression and under no other circumstances. He may never initiate force. The words “sensible,” “lower,” and “smaller” do not apply. The limits on government are absolute.

The argument that needs to be made against the current health care program is that it violates the law of nature. By forcing some people to pay for health care services that are provided to others and by forcing everyone to purchase health insurance regardless of their consent, government exceeds the natural limits of its power. It initiates force and thereby commits aggression against every individual in society. The initiation of aggression results in the state of war. It is for this reason that the new health care program should be repealed. Once the argument is diverted to one simply about cost or the practical means to fund the program, the principle of limited government has been abandoned.

While this is a relatively simple answer, as are all answers to questions of justice, it is a double-edged sword for conservatives. Once the true limits of government power are acknowledged, then a large swath of the conservative platform is called into question. Most obviously, garnering support from older Americans in opposing “Obamacare” on the grounds that it will necessitate cuts in Medicare contradicts the principle of limited government. The flimsy distinction between the new health care program and the old has been that Medicare recipients have “paid into the system all of their lives.” While this is undoubtedly true, everyone knows that those payments all went to underwrite previous beneficiaries and not into some magical trust fund. Medicare is no less a redistribution program than Obamacare. It just benefits a different special interest group.

While support for Medicare may merely be a political necessity for conservative politicians, truly limited government is also at odds with what has become the bedrock of modern conservatism: support for the worldwide U.S. military establishment. This is not to say that limited government means no military establishment at all. However, it does mean that the government has no legitimate authority to maintain standing armies overseas, to fight wars to protect one nation from another, or to protect a foreign people from a despotic government. The natural limit of government military action is to defend its own citizens against aggression by a foreign nation. Beyond this, it is initiating force and exceeding that natural limit.

One might argue that every individual has a right and a duty to protect a fellow human being from aggression by a third party, and that therefore the U.S. government’s military interventions around the world are justified. This was the basis for the (second) argument for the Iraq war. Saddam Hussein was oppressing his people and the United States had a duty to protect them from him. However, no individual has a right to force someone else to defend a third party against aggression. Every American had the right to send money to support Hussein’s opponents or even to go and fight in a revolution to overthrow him. However, no American had the right to force his neighbor to do so. The natural limit on military spending is that which is necessary to protect those taxed to support it. Humanitarian aid in any form must be voluntary.

Liberals constantly use the term “fair share” when justifying the egregious taxation and redistribution system that the U.S. government has become. Of course, this begs the question, “What is my fair share of services that I don’t use and that I actively oppose?” The only rational answer to this question is “zero.” However, once you come to this inescapable conclusion, virtually all government social and economic programs must be eliminated, as they are all based upon taxing one person in order to provide benefits to another.

Limited government does require each individual to pay his fair share, which is the cost to protect his own life, liberty, and property and that of his dependents. It is limited to what is necessary to “secure these rights.” While everyone may not have an equal amount of property, everyone has equal rights and thus an equal stake in providing for their defense. An examination of the U.S. government’s budget reveals that the cost of providing this defense of individual rights is orders of magnitude less than what is spent now. A government operating within its natural limits would not require an income tax, a value added tax, or a “fair tax.” American history has already proven this.

While it may be justified in a theoretical sense, America’s massive redistribution state cannot be abolished with the stroke of a pen. Not even the staunchest libertarian really wants to see Social Security, Medicare, or public welfare turned off tomorrow, with the poor and elderly left to fend for themselves. However, to be committed to limited government means to be committed to working towards eliminating these programs, not reforming them. This may take generations to accomplish, but we must first at least acknowledge that they have to go.

What we can do right now is end our worldwide military empire. Unlike the social programs, this would not mean short-term hardship in exchange for long-term gain. Getting our soldiers out of the 130 countries that they are stationed in would provide an immediate benefit both to the United States and the rest of the world. Proponents of the empire would argue that a sudden withdrawal of our troops would “destabilize” the regions that they are stationed in, but this is absurd. The presence of troops does not provide stability. It inspires resentment and provokes the inhabitants to retaliate. Without a troop presence in the Middle East, the motivation for terrorism would quickly fade. It is much easier to recruit suicide bombers when you can show your recruits armed troops in their own neighborhood than it is trying to convince them to give their lives to stop women in some far off land from wearing mini-skirts. Does anyone really believe that this is why they want to kill us?

A little simple arithmetic will demonstrate that even eliminating all military spending would not allow us to pay for our welfare state. The total military budget is around $700 billion, while Social Security and Medicare alone are over $1 trillion, with Medicaid adding $400 billion more. This does not even take into consideration all of the smaller programs for housing, education, medical research, “infrastructure,” energy, agriculture – all of these programs violate the principle of limited government for the same reason that Obamacare does. Added together, the vast majority of non-military federal spending is some type of wealth redistribution. It would seem that there is no equitable way out.

The answer lies in revisiting the “fair share” idea. Unlike taxation, there is no such thing as a fair share of benefits derived from other people’s money. We must recognize that in order to undo the century of damage we have done to our society, some people are going to have to pay out more than they receive in benefits. We could certainly come up with a plan whereby people my age, in their mid-40’s, would only be guaranteed catastrophic coverage through Medicare and reduced payments from Social Security, both payable only with a demonstrated need rather than as an entitlement. This would allow new workers to get out of the system altogether and finally restore limited government and true social justice. Would it be fair? No. Neither is the status quo. However, it would lead to prosperity and justice for our children. The status quo will lead us to our destruction.

This is only one strategy and I am sure that smart people could come up with others. As the old saying goes, the first step in solving our problem is admitting that we have one. If we want limited government, we must recognize that it is far more than Obamacare or welfare for the poor that is violating the law of nature. Let us continue to oppose Obamacare, but let us also acknowledge the vast amount of work to do even after this new incursion into our liberty is vanquished.

Check out Tom Mullen’s new book, A Return to Common Sense: Reawakening Liberty in the Inhabitants of America. Right Here!

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© Thomas Mullen 2010