At Volokh Conspiracy, David Kopel comments on some of the constitutional difficulties Republican presidential contenders encountered in today's Q&A event in South Carolina.
The one that struck me, though, was one he didn’t mention: Michele Bachmann’s claim that state (as opposed to national) health care mandates are unconstitutional. She makes this claim quite clearly, and indeed apparently has made it in the past (so it’s not an off-the-cuff remark). Yet she seems to have no idea what part of the Constitution it could be based on. From CNN's transcript:
[Princeton Professor Robert] GEORGE: And if I could explore one more constitutional question with you, Congresswoman, I was interested to see — and I think I have understood you correctly that you have argued not only that the federal mandate, the individual mandate in Obamacare is unconstitutional, but that even a state individual mandate would be unconstitutional. You have — if I have understood your position correctly, that's a…
(CROSSTALK)
BACHMANN: That is correct. That is correct. I believe it is also unconstitutional…
UNIDENTIFIED MALE: Thirty seconds.
BACHMANN: … for states to mandate as a consideration of citizenship, a condition of citizenship, that an individual would have to purchase a product or service, even at the state government's behest.
GEORGE: And do you believe that the national Constitution forbids states from doing that?
BACHMANN: I believe that it's inherent in the Constitution.
GEORGE: In the national constitution?
BACHMANN: Yes, I do.
GEORGE: So to say it's inherent sounds like there's not a particular provision you can point to?
BACHMANN: Well, I'm sure you could enlighten me as to that provision.
Perhaps we’ve lived so long in a legal environment where the Constitution means whatever one thinks it ought to mean that we should no longer be shocked that an apparently serious presidential candidate can’t even be bothered to identify what part of the Constitution she is relying on to declare something unconstitutional. But this year's Republican candidates have purported to focus on what the Constitution actually means (as opposed to what the Supreme Court says it means). Among other things, that theme suffuses today’s South Carolina event. Yet statements like Bachmann’s simply do not take the Constitution seriously. She is so opposed to health care mandates – including, of course, the state health care mandate approved by her primary opponent Mitt Romney – that in her world they must be unconstitutional; finding the provision that actually accomplishes this result is, to her, apparently unimportant.
I suppose it's possible that something in the Constitution makes state health care mandates, of the kind adopted in Massachusetts, unconstitutional. I don’t know what that something could be, but that’s not the point. The point is that Bachmann doesn’t know either, and nonetheless indulges in the very serious charge of unconstitutionality. That is, to say the least, disappointing.
Posted at 11:30 PM