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August 23. 2011 10:01PM

The 10th Amendment: Romney's weak argument

During campaigns, issues come and go. But as Republicans seek a presidential nominee, the discussion always includes Obamacare and Mitt Romney’s sweeping reform of health insurance in Massachusetts.

The basic underlying issue is ever-expanding government authority. Voters know that a presidential candidate’s understanding of the legitimate balance between government power and personal freedom is more revealing than his stance on insurance policy.

Throughout the campaign, Romney has been forced to play defense when questioned about any of these issues. When criticized, he must balance on a legal tightrope, a challenge that would prove daunting to any attorney. Romney’s carefully constructed response is built on subtle legal differences between state and federal constitutional powers. It’s clever. It might be a winning argument in a moot court competition at Harvard. But a presidential election isn’t an academic exercise. Voters dislike sophistry.

Romney asserts that a national health care insurance mandate is invalid because Congress lacks the constitutional power to impose it. He says the Massachusetts Constitution does not limit the commonwealth in that way. Therefore, since the U.S. Constitution’s 10th Amendment gives the states powers not granted to the federal government, the Bay State has full authority to demand that every resident purchase health insurance.

Maybe so. But that would not make it right. The Massachusetts Constitution is even older than the U.S. Constitution. Since the Revolutionary War, it has protected the basic freedoms of Bay State residents. It is notable that Part 1, Article 1 guarantees “certain natural, essential, and unalienable rights,” including citizens’ property rights.

When questioned by Chris Wallace about government powers in a recent Iowa debate, Romney nearly fell off his tightrope by claiming expertise on Massachusetts constitutional law. He argued that his insurance reforms were valid because the document “allows states to say that our kids have to go to school.” That odd analogy would make little sense even if that constitution directly addressed school attendance. It does not.

Like all Republican presidential candidates, Mitt Romney extols the 10th Amendment. But in practice, he clearly believes that the Bill of Rights actually allows individual states to limit freedom in ways that undercut two centuries of adherence to the Founders’ vision of limited government.

To Romney, that’s not just arcane constitutional theory. It appears to be his style of governing.

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