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If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?
The New Republic ^ | April 13, 2012 | Einer Elhauge

Posted on 04/14/2012 6:57:07 PM PDT by Kaslin

In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed.

But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.

Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

Not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional. Moreover, no one thought these past purchase mandates were problematic enough to challenge legally.

True, one could try to distinguish these other federal mandates from the Affordable Care Act mandate. One could argue that the laws for seamen and ship owners mandated purchases from people who were already engaged in some commerce. But that is no less true of everyone subject to the health-insurance mandate: Indeed, virtually all of us get some health care every five years, and the few exceptions could hardly justify invalidating all applications of the statute. One could also argue (as the challengers did) that activity in the health care market isn’t enough to justify a purchase mandate in the separate health insurance market. But the early mandates required shippers and seamen to buy health insurance without showing they were active in any market for health insurance or even health care, which was far more rare back then.

Nor do any of these attempted distinctions explain away the mandate to buy guns, which was not limited to persons engaged in commerce. One might try the different distinction that the gun purchase mandate was adopted under the militia clause rather than the commerce clause. But that misses the point: This precedent (like the others) disproves the challengers’ claim that the framers had some general unspoken understanding against purchase mandates.

In oral arguments before the court two weeks ago, the challengers also argued that the health insurance mandate was not “proper” in a way that allows it to be justified under the Necessary and Proper Clause. These precedents rebut that claim because they indicate that the framers thought not just purchase mandates but medical insurance mandates were perfectly proper indeed.


TOPICS: Culture/Society; Editorial; Government
KEYWORDS: healthcare; individualmandate; liberallies; obamacare; orwelliannightmare; revisionisthistory; socialism; stalinisttactics
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There was no room for a barf alert in the title.

Notice that the author did not provide any proof about a law being passed in 1790 making it a mandate that Shipowners had to provide health insurance for their sailors. Like a typical liberal he pulled the lie out of his derriere and expects others to buy the lie hook line and sinker

1 posted on 04/14/2012 6:57:19 PM PDT by Kaslin
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To: Kaslin
When will these losers realizes that this gig is up. They lost.

Then again a reality check for liberals often requires a 2X4 to their head...repeat if necessary.


2 posted on 04/14/2012 7:02:49 PM PDT by darkwing104 (Let's get dangerous)
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To: Kaslin

O.K., so let’s pass a law again mandating that EVERY adult citizen not convicted of a felony buy a firearm (not just men, right?). Let’s see if this liberal pussy is in favor of that.


3 posted on 04/14/2012 7:03:36 PM PDT by Lysandru
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To: Kaslin

My BS meter peg so hard it broke ...


4 posted on 04/14/2012 7:03:54 PM PDT by doc1019 (Romney will never get my vote!)
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To: Kaslin

Medical insurance around in 1790? Who knew?


5 posted on 04/14/2012 7:04:26 PM PDT by C. Edmund Wright
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To: Lysandru

Oh, and let me add- the firearm purchase was not designed to regulate commerce— it was a national defense matter.


6 posted on 04/14/2012 7:04:52 PM PDT by Lysandru
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To: Kaslin

My understanding is that such a mandate was law.

Still, sailors were already involved in commerce. There was no requirement for people to be come sailors, so that their commerce could be regulated.


7 posted on 04/14/2012 7:05:21 PM PDT by donmeaker (Blunderbuss: A short weapon, ... now superceded in civilized countries by more advanced weaponry.)
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To: Kaslin

Tantalus...


8 posted on 04/14/2012 7:07:43 PM PDT by sayfer bullets ("...and if it stops moving, subsidize it." - RR)
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To: Kaslin

This blog does a nice job of refuting:

http://fosterfriess.com/campfire-blog/2012/04/14/founding-fathers-did-not-back-health-insurance-mandates/


9 posted on 04/14/2012 7:08:16 PM PDT by gusopol3
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To: darkwing104

sound good to me


10 posted on 04/14/2012 7:08:16 PM PDT by Kaslin (Acronym for OBAMA: One Big Ass Mistake America)
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To: Kaslin

The two ‘insurance’ laws were actually requirements that ships keep doctors and provide service to the crew. This is because all ships were involved to some degree in the Barbary war but could also be conscripted into the service of the States and thus were considered a potential military naval asset.

The requirement of owning a gun was a wartime law establishing a militia.

Neither of these laws are even close to the ‘mandate’ of health insurance. Both were part of national defense issues, not commerce.


11 posted on 04/14/2012 7:09:03 PM PDT by mnehring
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To: Kaslin
nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases.

Surely Elhauge is sufficiently educated to know that what the Constitution permits is explicit or clearly implied in the document’s language, and that what is left out is explicitly prohibited.

Why, then, his coyness?

We must think it is because he wishes government to be given powers which it has no right to assert.

12 posted on 04/14/2012 7:09:36 PM PDT by YHAOS (you betcha!)
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To: C. Edmund Wright

notice that he didn’t provide any proof, and I bet you if you were able to ask people from that time they would have no idea what you are talking about.


13 posted on 04/14/2012 7:12:06 PM PDT by Kaslin (Acronym for OBAMA: One Big Ass Mistake America)
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To: Kaslin

Utter nonsense.

Courts have long confirmed that Congress has the general power to determine United States maritime law. The power of Congress to pass laws relating to seaman or other matters relating to maritime jurisdition is not dependent on the interstate commerce clause. Even so, shipping on the high seas can be covered under the foreign or interstate commerce clause by the very nature of the activity.

Congress has explicit power over the organizing and arming of the militia under the Constitution.

These examples the author cites have no legal relevance to the question of the constitutionality of ObamaCare under the interstate commerce clause.


14 posted on 04/14/2012 7:14:35 PM PDT by Meet the New Boss
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To: gusopol3
Note, that use of the taxing power to regulate is OLD OLD OLD. That's how they used to regulate Marijuana. The idea there was if they placed a tax on MJ, no one would pay it so they could be arrested and jailed.

The Democrats have kind of gotten this all backwards ~ using IRS to punish people who don't pay their monthly medical insurance premiums for example ~ ......................

Could it be they've been dipping in the "now empty bag of mairjuana".

15 posted on 04/14/2012 7:15:04 PM PDT by muawiyah
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To: darkwing104
"a reality check for liberals often requires a 2X4 to their head...repeat if necessary."

Have you not yet come to understand that such a practice will only produce further brain damage in an already unrecoverable brain damaged individual?

( ^8 }

16 posted on 04/14/2012 7:15:04 PM PDT by YHAOS (you betcha!)
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To: Kaslin

Wow. I don’t even know where to start with this one.


17 posted on 04/14/2012 7:18:59 PM PDT by SandyInSeattle (Never borrow batteries out of your smoke alarm!)
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To: mnehring
The gun law was a misreading of what they'd added to the Constitution. I read it to require the government to provide military grade firearms to constitutional members of the militia, that is, males 16 to 60!

I wanted an Abrams tank, fully decked, and with half a dozen deuce and a halfs tailing along carrying ammunition of suitible caliber!

18 posted on 04/14/2012 7:19:21 PM PDT by muawiyah
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To: gusopol3

See, I told you that idiot author pulled it out of his derriere


19 posted on 04/14/2012 7:20:19 PM PDT by Kaslin (Acronym for OBAMA: One Big Ass Mistake America)
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To: Lysandru
O.K., so let’s pass a law again mandating that EVERY adult citizen not convicted of a felony buy a firearm (not just men, right?). Let’s see if this liberal pussy is in favor of that.

No reason to exclude felons, the constitution doesn't.
20 posted on 04/14/2012 7:20:42 PM PDT by cripplecreek (What does it profit a man if he gains the whole world but loses his soul?)
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