But that simply is a distortion of what the framers were up to. And for right-wingers who cite the Tenth Amendment as supposed support for their position, they should read the amendment's weak language on states' rights compared to what it replaced, Article II of the Articles of Confederation, which established the supremacy of the states.
After the Constitution wiped away the sovereignty of the states and established the supremacy of the federal government, the Tenth Amendment amounted to a minor concession to the anti-federalists, giving the states only ill-defined leftover powers.
Endorsing Obamacare
The Right's revisionist version of the nation's Founding isn't even accepted by serious conservative legal scholars, including one of the most right-wing members of the U.S. judiciary, senior Judge Laurence Silberman who was appointed to the influential U.S. Court of Appeals in Washington by President Ronald Reagan.
On Nov. 8, 2011, Silberman issued a ruling supporting the constitutionality of the Affordable Care Act, often called "Obamacare." In it, Silberman explained how the law -- and even its most controversial feature, the individual mandate requiring the purchase of health insurance coverage -- fit within the language of the Commerce Clause and within prior legal precedents.
"We look first to the text of the Constitution," Silberman wrote in his opinion. "Article I, - 8, cl. 3, states: 'The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.' (Emphasis added by Silberman).
"At the time the Constitution was fashioned, to 'regulate' meant, as it does now, '[t]o adjust by rule or method,' as well as '[t]o direct.' To 'direct,' in turn, included '[t]o prescribe certain measure[s]; to mark out a certain course,' and '[t]o order; to command.'
"In other words, to 'regulate' can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term 'commerce' limited to only existing commerce. There is therefore no textual support for appellants' argument... that mandating the purchase of health insurance is unconstitutional."
Silberman's opinion also examined decades of Supreme Court precedents that affirmed the power of Congress to establish regulations over various national markets.
"Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible," Silberman wrote.
Neither limitation applied to the health-care law, Silberman noted, because medical insurance was clearly an economic activity and surely had sizable interstate implications.
As for the claim that people had a constitutional right not to participate in the purchase of health insurance, Silberman was not persuaded. For instance, he cited a Supreme Court precedent that a farmer who wished to raise wheat for his own consumption could still face federal restrictions because his production (and that of other like-minded farmers) could affect the overall supply of wheat and thus undermine federal policy regarding the wheat market.
Addressing National Problems
Silberman also recognized Congress' power to address difficult national problems, like the tens of millions of Americans who lack health insurance but whose eventual use of medical services would inevitably shift billions of dollars in costs onto Americans who must pay higher insurance rates as a result, what courts have described as "substantial effects."
"The shift to the 'substantial effects' doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce," Silberman wrote.
"Its very premise is that the magnitude of any one individual's
actions is irrelevant; the only thing that matters is whether the
national problem Congress has identified is one that substantially
affects interstate commerce. ...
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