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.
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
Bump
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........
“Teachable Moment” is the regime phrase.
Did any of those imbeciles over at the New Republic ever take Constitutional Law?? Maybe from Obummer. They should read the 10th Amendment. functions not specified in that document are reserved for the States or the people. All they knew in those days was blood letting-—good grief!
BTTT
Thus the problem. Insurance is the driving force of health prices. I can guarantee ya if there was no insurance, health care would be cheaper.
Just like students loans and grants. If we didn't have them, college would be cheaper.
Things are cheaper when ya gotta pay out of your own pocket.
These guys are idiots. Freedom to contract is a natural right that pre-exists the constitution. A contract requires willing parties. Coercion of a party voids the contract. How can the federal government coerce Americans into health insurance contracts and the contracts be binding? How about funeral insurance contracts? Life insurance contracts? Where will it end?
This seems to have come fully formed in the last week or so. I’ve been looking via google for “george washington” plus “insurance” plus “seamen” prior to March 15, 2012 and find absolutely nothing.
You’d think that a Perry Mason “fact” like this would have existed at some point in the last two or three years and been brought up at the SC. I too call BS, and look forward to the inevitable debunking that it wasn’t actually a law, or it was in fact a directive by General (not President) George Washington, or something like that.
don't lower yourself to Bill Maher's level
Great link. The gun “mandate” is a militia issue allowable via other Constitutional means, the insurance “mandate” is a matter of foreign commerce allowable under other Constitutional means, and the per-head tax is just that, a tax.
Oops, I didn’t go back far enough. He wrote something like this back in January. Still, I find it odd that nobody brought it up at the SC — unless, as many have posted earlier, it isn’t really precedent and therefore would have been quickly shot down.
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