A few weeks before he announced his own run for the White House, Gov. Perry made the following statement: "Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me. That is their call. If you believe in the 10th Amendment, stay out of their business."
It is a simple view of the 10th Amendment and one that certainly has merit: individual states should be left to their own devices on matters that are not, to paraphrase the Amendment, expressly delegated to the Federal Government. As Gov. Perry correctly notes, that includes the definition of marriage, among other things; absent a Constitutional amendment, the States have jurisdiction.
The wording of the amendment is important. It reads: "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 is often referred to as "the reserved powers clause" because of its distinct wording; it limited federal constitutional powers to those powers specifically delegated while the remainders – everything else – were "reserved to the States."
The history of the Republic is marked by the battles over the reserved and delegated powers, on issues ranging from slavery to abortion, from apple grading to building codes. The Founders meant it that way, and intentionally left the larger swath of political unknowns to the states. They did this so that new policies could to be tested on a smaller scale while respecting local mores and customs.
The system is genius. As Franklin noted, it set up each state as an incubator of policy ideas, allowing failures to be limited in scope while the very best policies could be replicated by other states.
That is why Governor Perry’s position on the 10th Amendment is correct – but it is also why his attack on Romneycare rings so hollow.
This is not a specific defense of Romneycare; on the contrary, I dislike the law and there are many aspects that were failures. But, bluntly, that is exactly what is supposed to happen – states are supposed to try and fail in the hopes that they will occasionally succeed. This allows our society to benefit from the testing of any number of new policy ideas while significantly limiting national risk in the event an attempt does fail.
Think about in these terms: does anyone think that uninsured people aren’t an issue we, as a society, should try and address? The cost of mandatory treatment for uninsured people at hospitals makes the economics alone a sufficient basis for the attempt. In 2006 most of us – myself included – wanted to see states try new options to mitigate this obvious problem.
When then Gov. Romney took a swing at the problem he did so with the right intentions – he built a plan that fit his constituency in the hopes of solving a problem all but the most cynical see. It was not a plan for Pennsylvania, Hawaii or Texas – it was a plan for Massachusetts.
The legislation’s results were mixed; fewer children are uninsured but the plan was unwieldy and expensive. The country learned from the experience, even if the Obama administration did not; state governments did not adopt the Massachusetts plan. And it is hardly the fault of the former Governor of Massachusetts if a subsequent President tried to force a state plan on the entire nation while dramatically expanding the original plan’s scope.
No one – not even Perry – is arguing that the people of Massachusetts didn’t get what they wanted when the legislature adopted a version of universal care. And, at the same time Massachusetts was setting its policy, the people from "the State of Texas" were able to keep their system – a result 10th amendment purists should applaud. The system worked exactly as the Founders intended.
Governor Perry, as his remarks on gay marriage demonstrate, knows this. His attacks on Governor Romney over a valid state issue are therefore politically crass and disingenuous.
But even more than that, the attempt to score cheap points shows the lack of perspective many sense in the current governor of Texas. After all, we want states to experiment with new ideas and ways to try and solve problems we all know exist. If we make the price of such failure the end of later ambition aren’t we dooming ourselves to repeating the same problems again and again? Put another way, if we place such a huge disincentive on trying new things, aren’t we simply limiting ourselves to the failed ideas of the past?
The 10th Amendment encourages the opposite. Governor Romney understood this and was willing to take a chance and see if there wasn’t something better than the status quo.
Did it work? Not the way he’d hoped. But the attempt was and remains important, as does the critical lesson – that the states are the place to try these new solutions. Let the states try and fail (until we succeed) as the constitution intended. One size does not fit all.
That is why Governor Perry is in such a bind – he needs to attack Gov. Romney for passing universal healthcare when in reality he knows that this is exactly what the 10th Amendment he champions contemplates. He understands the fundamental difference between Romneycare and Obamacare has always been this simple: Romneycare is a state level solution envisioned by the 10th Amendment and welcomed by the constituents it serves; Obamacare is a federal mess imposed through questionably democratic means on a populace who doesn’t want it.
The next 4-8 years will present any number of new and nearly intractable problems, ranging from emerging threats to economic upheaval. Solutions will be proposed at all levels of government – exactly as our federal system envisioned. Some of these ideas will succeed while even more will likely fail. But the attempts are desperately needed, and the solution to our big problems will remain elusive as long as we don’t have encourage and foster those attempts.
That is what the 10th Amendment envisioned. Do we really want a leader so hidebound by rhetoric that he cannot see the larger principle? Can we afford a leader who will only "stick to his guns" when circumstances ultimately (and inevitably) change? And can we truly call such a person a "leader?"
After all, isn’t that what we have now, and isn’t that what we are seeking to replace?
I’m Scott Paterno, and that is the uncomfortable truth.