In The New Republic, Harvard Law Professor Einer Elhauge writes that — contrary to those arguing for the unconstitutionality of the Affordable Care Act — the historical evidence shows that many of those who participated in the framing of the U.S. Constitution approved of the idea of an individual health-care mandate. From Elhauge’s piece:
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…
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 framer, President John Adams.
Not only did most framers support these federal mandates… 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.
I suppose it’s interesting trivia to know that they favored a form of a mandate, but in the context of healthcare in 2012, it’s irrelevant. More importantly, it won’t make a lick of difference to the hypocritical and committed ideologues on the supreme court.
I frankly don’t give a flying fortress what the constitutional framers wanted. There is no way they could have seen what American society would be like 225 years into the future. The constitution is a good starting place, but it needs to be flexible and living. The New York Times had a great article a while back on how emerging democracies around the world essentially ignore our constitution when writing their own; they look to newer, more 21st century documents as blueprints — contrary to the popular belief many (conservative) Americans hold that we are still a shining lighthouse in a city on the mountain or whatever clumsy jingoistic metaphor they’re pushing today.
The only people who believe the Constitution
is a “living document” are those who don’t like what it says.
Yep
You’re probably right. I don’t like what it says.
It got some things correct (first amendment), but other things either overly ambiguous or dead wrong (second amendment).
On the wall of the Jefferson Memorial:
“I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to still wear the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” Thomas Jefferson
Well then
why aren’t they still the law? When were they overturned?
Constitutions and Courts Supreme
The laws identified were written before the Supreme Court became the final arbiter of the constitutionality of law; they hadn’t yet declared any law unconstitutional, possibly didn’t realize they had that authority, so there wasn’t much of a reasonable challenge to be made to the Supreme Court of that day.
If the framers of our Constitution enacted a You-Must-Purchase feature, and with health care, for Pete’s sake!–that is a precedent. The so-called conservative “originalists” on the Supreme Court would have to take that into account. (Even if they don’t like the other Commerce-Clause precedents for the health care act being questioned currently.)
But I’ve seen public commentary that suggests that neither the U.S. Solicitor General, the opposing attorney who’s attacking the health care reform act, nor the clerks for the Supreme Court justices (who do much of their research on whatever topic comes before the court) simply did not do a good job of researching precendents, or the legal arguments that are pertinent. That our justices spent time on broccoli analogies indicates that.
Good clerk research would have found what this Harvard Law guy just published.
Larger Mandate
The Militia Act of 1792 mandated that every able-bodied man between the ages of 18 and 45 be drafted into the militia, and to buy guns, ammunition and equipment. This act was signed by George Washington.
from the law:
“That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder…”
Nobody challenged the government’s right to force citizens to buy something.
GUNS
Let’s stick to this definition of the 2nd amendment. I wonder if you can find powder and ball now, or a powder-horn. I’m OK with that interpretation of the 2nd amendment–especially if the owners register
You must mean the current US Supreme Court that overturned both the Constitution and 100 years of settled law in the Supreme Court decision in Citizens United.
If it isn’t a living document, why do we need courts to give us the final word? If it isn’t a living document, why can’t the court be, what Roberts claimed, falsely, he was going to be as chief, a “referee”? Why can’t we just throw out the court system and just rely on what it says.
The 2nd amendment is controversial because it comes out of the 18th century experience of our war against Britain, when state militias were needed.
health care
I don’t think it’s trivia. Because the Constitution is unclear in many many places, it is instructive to see that the framers and the early Congresses agreed with the concept of a health mandate. This is the sort of thing lawyers and courts use in arguments–otherwise it is trivial, this is a living document.
Stare decisis doesn’t matter here
In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional cases:
“Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. … But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. … This is strikingly true of cases under the due process clause.”
– Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932) (Brandeis, J., dissenting.[7]
Justice Antonin Scalia argues in “A Matter of Interpretation” that America is a civil law nation, not a common law nation. By principle, originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the Constitution.
It’s an interesting comparison
but mandating that employers particularly of the seafaring kind, buy insurance to cover work related illness or injuries for their employees is different from mandating that the employees buy their own insurance. Until 1944, when the Supreme Court overruled Paul v. Virginia, insurance was not “commerce” so it was not regulatable by Congress. I suspect that the ghosts of Paul v. Virginia and its descendant Allgeyer v. Louisiana, which established “liberty of contract” in US jurisprudence are haunting the Supreme Court justices who are itching to restore “substantive due process” and the Supreme Court to its previous glory as a right wing superlegislature.