Taking the Tenth

Rich Tucker
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Posted: Dec 04, 2009 3:40 PM
Are you a “Tenther?”

No, that’s not someone who lives in a tent to remain off the grid -- although that may be something we Tenthers will soon consider. No, “the Tenthers are the ones who keep citing the Tenth Amendment to the Constitution every time there is a proposed bill they don’t like, claiming the Constitution prohibits it,” as liberal commentator Alan Colmes explains on his Web site.

Well, get ready, because if the health insurance reform legislation now under consideration in the Senate passes, the Tenth Amendment could be all that stands between Americans and the road to socialized medicine.

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The amendment is direct and clear. “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.”

It defines the entire reason we have a written Constitution. It hammers home the point that the federal government is one of limited powers. Lawmakers in Washington may only do what the Constitution specifically gives them the power to do -- everything else is reserved to the states or to the people.

This is crucial, because the pending Senate bill, like the House bill that passed earlier this year, would compel all Americans to purchase health insurance or pay a hefty tax. Take a moment to flip through the U.S. Constitution; it doesn’t take long. The whole thing, along with the Declaration of Independence, can fit neatly inside your shirt pocket.

Anyway, you won’t find anything about the federal government being empowered to compel you to buy health insurance. In fact, the Constitution is silent on health issues in general, presumably leaving those personal decisions in the hands of “the people.”

Ah, but House Speaker Nancy Pelosi has anticipated this line of argument. “The Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce,” she notes in a news release. “Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.”

There are two major objections here. First, health care is obtained, in virtually every instance, within the borders of a single state. There are cases where a patient moves from one state to another during treatment, or seeks care from a specialist in another state. But it’s silly to say that such exceptions prove that health care is an interstate activity akin to trucking or Internet scams.

Second, and perhaps more important, is that Congress itself limits the interstate nature of health insurance. People should be able to buy insurance across state lines, the same way they can buy canned goods or fresh vegetables. If you live in New York but want to buy a bare-bones policy sold in Kentucky, you should be able to do that. The government won’t let you, which is one reason the cost of health insurance is so high. Recall that during the Alito and Roberts hearings a few years back, Senate liberals hammered away at the concept of stare decisis. To them the phrase seemed to mean, “Will you vow to never overturn any decision that’s been made by Sandra Day O’Connor?”

What stare decisis is supposed to mean is that a judge will respect longstanding precedent whenever possible. And so, having ascended to the Supreme Court, how did President Obama’s first nominee deal with stare decisis?

“In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law,” wrote Jess Bravin in the Sept. 17 Wall Street Journal. Judges, she said, “created corporations as persons, gave birth to corporations as persons.” Thus the highest court might want to reconsider that legal precedent. Now, that would be overturning stare decisis.

As economic historian John Steele Gordon has explained, the corporation makes today’s economy possible. “Before the corporation, a person who invested, either individually or in a partnership, was risking his entire fortune,” Gordon wrote in his book “The Great Game.” But with corporations treated, legally, as an individual, it’s possible to invest without losing more than you put in. The only difficulty, as Gordon notes wryly, is we cannot throw a corporation in jail.

So will courts properly apply the Tenth Amendment and protect us from government-run health care? Let’s hope we don’t have to find out.