Was Romneycare Unconstitutional?

You can now divide Americans into two groups: Those who believe government rightfully has the power to force people to purchase goods and services they do not want and those who don’t.

Among the former are two subgroups: Those who believe only state governments have this coercive power and those who believe the federal government has it, too.

President Barack Obama is in the latter subgroup. He signed a health care law that forces Americans to purchase health insurance.

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Former Massachusetts Gov. Mitt Romney is in the former subgroup. He signed a health care law that forces people in Massachusetts to purchase health insurance.

In a debate last August on Fox News, Romney tried to explain his constitutional vision on when and where government can coerce people to buy goods and services they don’t want.

Host Chris Wallace asked Romney: “Do you think that government at any level has the right to make someone buy a good or service just because they are a U.S. resident? Where do you find that authority, that mandating authority, government making an individual buy a good or service, in the Constitution?”

Romney initially seemed confused and answered an unasked question about Obamacare.

“The answer is, I think, you have to repeal Obamacare, and I will, and I’ll put in place a plan that allows states to craft their own programs to make those programs work,” said Romney.

“But, sir,” said Wallace, “I’m asking you where you find that authority in the Constitution.”

Romney responded: “Where do I find it in the Constitution? Are you familiar with the Massachusetts Constitution? I am. And the Massachusetts Constitution allows states, for instance, to say that our kids have to go to school. It has that power. The question is: Is that a good idea or bad idea?”

Note that Romney did not directly say: The Massachusetts Constitution authorizes the government to force people to buy health insurance or any other good or service. He defended forcing adults to buy health insurance by saying Massachusetts can constitutionally force children to go to school.

Supposing it is true that the Massachusetts Constitution authorizes the state government to force children to go to school, how is that relevant to the question of whether it authorizes the state to force adults to purchase health insurance? Is telling a 13-year-old girl she must attend the eighth grade the same as telling a 32-year-old woman she must buy health insurance? Are both covered by the same provision in the Massachusetts Constitution? If so, what is that provision?

The word “insurance” does not appear in the Massachusetts Constitution. However, that Constitution’s “Declaration of Rights” says: “All people 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.”

How does a mandate that forces a man to surrender some of his liberty and some of his property in purchasing a government-approved health-insurance policy comport with the natural rights to liberty and property expressly protected by the Massachusetts Constitution?

Remember, Romney told Wallace at the Fox News debate: “The question is: Is that a good idea or bad idea?”

Is Romney arguing, then, that when the government of Massachusetts decides to coerce a citizen into buying a good or service that person does not want, the relevant question is whether a majority of the state legislature and the governor agree that it is a good idea for that person to be compelled to buy that product?

If so, what limit is there on the power of the state government to compel individuals to buy things they don’t want? Why couldn’t the legislature simply prescribe exactly how an individual must spend his after-tax income? For example: 20 percent on housing, 15 percent on food, 12 percent on transportation, etc.

More to the point: What if the state government, having established its authority to tell the people what they must buy, were to tell people they must buy something immoral?

In fact, when Romney enacted his Massachusetts health care law he complained on more than one occasion that one of the mandated insurance benefits under the program was in vitro fertilization.

“There are a number of things I think could be done better,” he told David Asman of Fox Business Network last year.

“Like?” said Asman.

“For instance, I vetoed a provision in it that said insurance offered in our state has to have all sorts of mandates, mandated coverages,” said Romney. “You have to include … everything from in vitro fertilization to unlimited chiropractic and so forth. I said, no, no, no. Let the private market sort those things out. But, if you will, my Democratic friends said no, no, no, we want to mandate these things.”

As Romney himself might have put it, the Democrats thought it was a “good idea.”

The Catholic Church teaches that in vitro fertilization — in which human embryos are created outside the womb and frozen for future use — is not just a bad idea, it is profoundly immoral. But in Massachusetts, Catholics have to buy insurance that covers it because their state government thinks it is a good idea.

On the federal level, Obama has now decided to force Catholics to buy health insurance that covers sterilizations, artificial contraceptives and abortifacients — all of which the church teaches are immoral.

Is Obama wrong here because he is usurping a power reserved for the states?

No, he and Romney are both wrong. They are wrong because the idea that government — at any level — can force a person to buy something against his will is not only a bad idea, it is repugnant to the foundational idea of our republic: that we all have a God-given right to liberty.




  • Terence Jeffrey

    Terence P. Jeffrey started as editor in chief of CNSNews.com in September 2007. Prior to that, he served for more than a decade as editor of Human Events, where he is now an editor at large.

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