Skip to comments.If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?
Posted on 04/14/2012 6:57:07 PM PDT by Kaslin
In making the legal case against Obamacares 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 Constitutions 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 theres a major problem with this line of argument: It just isnt true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congresswhich incidentally included 20 framerspassed 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. Thats right, the father of our country had no difficulty imposing a health insurance mandate.
Thats 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. Thats 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 isnt 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.
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
Then again a reality check for liberals often requires a 2X4 to their head...repeat if necessary.
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.
My BS meter peg so hard it broke ...
Medical insurance around in 1790? Who knew?
Oh, and let me add- the firearm purchase was not designed to regulate commerce— it was a national defense matter.
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.
This blog does a nice job of refuting:
sound good to me
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.
Surely Elhauge is sufficiently educated to know that what the Constitution permits is explicit or clearly implied in the documents 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.
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.
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.
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".
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 }
Wow. I don’t even know where to start with this one.
I wanted an Abrams tank, fully decked, and with half a dozen deuce and a halfs tailing along carrying ammunition of suitible caliber!
See, I told you that idiot author pulled it out of his derriere
So, if you own a car, you must carry insurance. And if you own a commercial boat you must carry insurance? Obama’s law requires that you carry health insurance if your heart beats. This guys argument doesn’t apply. Really though, I believe this is only more evidence that liberals try to find any reason to talk about seamen and poop decks...
These people had the country handed to them I guess we should expect condescention....
Thanks that was a good refutation.
Breathing= Not Commerce
Health insurance began in the US during the civil war, and didn't become widely used till the second world war.
Is this a parody?
It is so hard to tell these days
LOL as I have thought. I pretty much read everything about pre-American Revolution life in the colonies and I have never heard about an insurance mandate from that era.
I knew this article was full of Michelle Obama
I am a bit of a student of history, and to my knowledge, the only thing insured in those days were ships cargo. (Ironically, that is the birthplace of the insurance industry and Lloyds of London).
Medical care was cash and carry back then.
This is called the “grasping at straws” approach for liberal arguments.
The stupid is strong with this idiot.
Good point. The "Health" insurance that began in the 1860's was what we would call Accident insurance today.
If you are getting a tank and an ammo truck, you might also ask for a fuel truck. An M-1 is a very thirsty beast.
Hospitals in 1790?......
The government does have the right to demand some conditions of a ship using the nations ports. That’s a different thing from requiring all citizens to buy insurance simply because they are alive.
April 14, 2012 at 9:18 am
The seamen mandate was a proper regulation of commerce, and is no different than the government saying lawyers must be registered with the Bar Association to represent clients.
The gun mandate was only for those reporting for militia duty, clearly a very direct and very necessary and very proper use of To provide for organizing, arming, and disciplining, the Militia power that is listed right in the Constitution. It was also more a dictate to the States rather than the individuals, as you must realize the Constitution also mentions the Militia of the several States. The States were the ones arming their own militias, so Congress was just saying what the minimum acceptable level was for arming the militia. It would be like Congress setting what the minimum acceptable level of pollution controls on cars for those manufacturing cars, which is a power Congress clearly uses at present and is not on shaky constitutional ground.
Report on the Subject of Manufactures (1790)
Report on the Subject of Manufactures (1790)
Alexander Hamilton Frank William Taussig (editor)
State Papers and Speeches on the Tariff
This treatise, written by the United States' first Secretary of the Treasury, shows the word "commerce" to be a synonym for "trade" and not a catch-all phrase for economic activity. Alexander Hamilton believed in a strong central government and constantly tried to expand the role of the federal government, yet he understood that the word "commerce" did not refer to manufacturing or any other economic activity--it only referred to the trading of goods.
This fact is best shown in this phrase: "And there seems to be no room for a doubt that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, as far as regards an application of money."
If the word "commerce" broadly referred to farming, trade, and production, this entire sentence would have been redundant. But Hamilton, as well as the rest of our Founding Fathers, understood that the word "commerce" refers to trade only.
If this analysis is applied to the Constitution, it can be inferred that our modern understanding of the Commerce Clause is not in accordance with the intentions of the authors of the Constitution.
Video: Health Care's Individual Mandate: Not Justified by Commerce Clause
For the same reason that the Founding Fathers preferred Apples over PCs, and Glocks over the 1911A .45 caliber: Ease of use.
Okay, okay, I'll be less flippant:
The two 'mandates' he cites are bunkum:
The first, that the able-bodied own arms, is specifically constitutionally authorized in the requirement to establish a civilian militia -- moreover, it did NOT require that someone BUY a firearm. If your uncle Ted had spares, he could give you his. This Obamacare Mandate FORCES you to BUY a policy.
Second: The health insurance he cites was no such thing. It was a straight-on tax for people who engaged in a particular commerce. Not very unusual, and not very spectacular.
Bastard liberals lie and twist.
Here is the law that he is referring to:
You know you're in for a wild ride when the argument starts with, "Well, nothing in the Constitution says you can't do it!!"
He'd hold your hand while you passed kidney stones.
If you were lucky you'd have a Chinese physician ~ he had more dope and worked from a theory of how the body operated ~ all of them did bones.
Rich French noblemen would purchase or build facilities for those near death. One of my ancestors built one in the mid 1400s near Saumur. It's still standing. Today they use it as a church.
It was believed that building such a place would earn you a higher standing on Judgment Day.
OK, then let’s mandate every must buy, own, and maintain a Christian Bible of their choosing and a firearm with ammunition. They must muster with it after every church sermon on Sunday, of which they must attend, and shoot that firearm in qualification matches.
That’ll send the liberals even more batty than they are.
The problem is that a mandate is by far not the worst thing the marxists want to do. They didn’t even really want it. They want single-payer health care. And there is NO constitutional challenge available for that.
The courts are not the end of this problem by a longshot, and they will soon be a useless weapon in the fight. To stop this in the mid-to-long run, we either need to pass a constitutional amendment that would block this kind of government health care or hope that the marxists never again get as many elected officials in the government as they did in 2009-2010.
The draft was constitutional, right? Hard to think of a bigger mandate than that. It's basically slavery to the military. This firearm issue would seem to be analogous to the draft, but far less burdensome.
Looks like the Obamateur regime missed a chance to give the justices a history lesson. /sarc
So you're saying bloodletting wasn't covered? Did the government have a "leech panel?"
There are only two places to stand on Judgement Day..........on the left or the right.........it’s gonna be mighty crowded on the left........