The founders’ individual mandates

It is unconstitutional to force individuals to buy health insurance, according to critics of Obamacare.  Not so, says Einer Elhauge of The New Republic, who points out that the founders who wrote the Constitution were not above passing individual mandates forcing citizens to buy things:

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.

via Einer Elhauge: If Health Insurance Mandates Are Unconstitutional, Why Did The Founding Fathers Back Them? | The New Republic.

Wait a minute:  A mandate for everyone to possess firearms?  What does that  do to the liberal argument that the Second Amendment only allows for collective gun ownership in militias rather than personal possession?

I’m also curious about the status of these old laws.  Were they ever repealed?  Why, how, and when?  Would conservatives accept the insurance mandate in return for  Congress  re-instating the firearms mandate?

Anyway, back on topic, that the Washington and Adams administrations passed commerce mandates in no way proves they are Constitutional.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • SKPeterson

    Elhauge has provided insufficient justification for the mandate, and his lack of detail begs more questions. Also, George Washington invaded Pennsylvania with an army setting a wonderful precedent to be used 60 years later on his own state. Apparently, if something was done in the past that was wrong, it is sacred due to it being a historic event voted upon by a democratically elected Congress. Apparently, Dred Scott and the Fugitive Slave Act should have been enough to settle the slavery issue. I mean, some of the sons of the Framers signed those acts or made those legal decisions, so they must be valid.

    And Marbury v. Madison was decided when Mr. Elhauge? What exactly are these bills/laws called? Were they challenged in federal or state courts? And how exactly were the laws for these mandates enforced? To what extent were these laws ignored by both shipping companies and seamen? How much of this was a plot by the company of John Hancock to disrupt the business of his rivals, aided and abetted by his old friends in Congress (I have absolutely no evidence of this, but evil crony-capitalist proto-corporations had to be involved somehow, right)? How did it treat foreign vessels with American crew members, or American vessels with foreign seamen? How much of the understanding behind these acts was tied up in then-current understandings of the Law of the Sea, commercial law, and national sovereignty? Did this law apply to all seamen, or just certain classes? Were apprentice seamen to be treated like apprentice silversmiths and taken into the care of their employer as expected?

  • SKPeterson

    Elhauge has provided insufficient justification for the mandate, and his lack of detail begs more questions. Also, George Washington invaded Pennsylvania with an army setting a wonderful precedent to be used 60 years later on his own state. Apparently, if something was done in the past that was wrong, it is sacred due to it being a historic event voted upon by a democratically elected Congress. Apparently, Dred Scott and the Fugitive Slave Act should have been enough to settle the slavery issue. I mean, some of the sons of the Framers signed those acts or made those legal decisions, so they must be valid.

    And Marbury v. Madison was decided when Mr. Elhauge? What exactly are these bills/laws called? Were they challenged in federal or state courts? And how exactly were the laws for these mandates enforced? To what extent were these laws ignored by both shipping companies and seamen? How much of this was a plot by the company of John Hancock to disrupt the business of his rivals, aided and abetted by his old friends in Congress (I have absolutely no evidence of this, but evil crony-capitalist proto-corporations had to be involved somehow, right)? How did it treat foreign vessels with American crew members, or American vessels with foreign seamen? How much of the understanding behind these acts was tied up in then-current understandings of the Law of the Sea, commercial law, and national sovereignty? Did this law apply to all seamen, or just certain classes? Were apprentice seamen to be treated like apprentice silversmiths and taken into the care of their employer as expected?

  • James Sarver

    Sure enough, the government of Oklahoma requires me to buy liability insurance in order to be licensed to operate my vehicle. So what? I have no intrinsic right to that, just as 18th century persons had no intrinsic right to pursue the vocation of seaman. The government may regulate such things. Is Mr. Elhauge suggesting that the government may regulate my right to exist? My license to exist will depend on my purchase of health insurance? Give me a break.

  • James Sarver

    Sure enough, the government of Oklahoma requires me to buy liability insurance in order to be licensed to operate my vehicle. So what? I have no intrinsic right to that, just as 18th century persons had no intrinsic right to pursue the vocation of seaman. The government may regulate such things. Is Mr. Elhauge suggesting that the government may regulate my right to exist? My license to exist will depend on my purchase of health insurance? Give me a break.

  • George

    It seems seamen, which were for the most part merchants, are part of “commerce” in the strict sense, and therefore able to be regulated by congress.

    Also, just because it was done before doesn’t mean it is to be done now, and the nature of the insurance and the details of the bill may, if we knew them, do a great deal to mitigate the nature of the claim.

    But who knows?

  • George

    It seems seamen, which were for the most part merchants, are part of “commerce” in the strict sense, and therefore able to be regulated by congress.

    Also, just because it was done before doesn’t mean it is to be done now, and the nature of the insurance and the details of the bill may, if we knew them, do a great deal to mitigate the nature of the claim.

    But who knows?

  • http://cookinthebooks.wordpress.com David King

    Most bothersome in the current event is the rather transparent power-grab by the feds. The ‘individual mandate’ is one problem, but the greater comes with the feds stacking the deck so that they will end up being the only player in the game.

  • http://cookinthebooks.wordpress.com David King

    Most bothersome in the current event is the rather transparent power-grab by the feds. The ‘individual mandate’ is one problem, but the greater comes with the feds stacking the deck so that they will end up being the only player in the game.

  • Joe

    I had not heard about the seaman insurance before, but as for the firearm mandate that law was passed and based upon three separate clauses in Art. II, sec. 8 that expressly give congress the power to raise an Army for the Republic, call out the militia and to “provide for organizing [and] arming” the militia. Thus, it is really no precedent for the scope of the commerce clause, which is the alleged basis for the AHA.

    SKP – does a pretty nice job of explaining the weakness of trying to say look, look they did it before.

  • Joe

    I had not heard about the seaman insurance before, but as for the firearm mandate that law was passed and based upon three separate clauses in Art. II, sec. 8 that expressly give congress the power to raise an Army for the Republic, call out the militia and to “provide for organizing [and] arming” the militia. Thus, it is really no precedent for the scope of the commerce clause, which is the alleged basis for the AHA.

    SKP – does a pretty nice job of explaining the weakness of trying to say look, look they did it before.

  • http://enterthevein.wordpress.com J. Dean

    Andrew Wilkow made the same argument about requiring the purchase of firearms, and it’s probably a reason why even the more left-leaning SC justices are against Obamacare, because it sets this sort of precedent.

  • http://enterthevein.wordpress.com J. Dean

    Andrew Wilkow made the same argument about requiring the purchase of firearms, and it’s probably a reason why even the more left-leaning SC justices are against Obamacare, because it sets this sort of precedent.

  • Purple Koolaid

    This is discussed in much greater detail at the Volokh blog. http://volokh.com/2012/04/13/58696/ Constitutional law professors discuss. Very interesting.

  • Purple Koolaid

    This is discussed in much greater detail at the Volokh blog. http://volokh.com/2012/04/13/58696/ Constitutional law professors discuss. Very interesting.

  • DonS

    As Joe already pointed out @ 5, the firearms example is irrelevant to the Obamacare issue, because it is rooted in Congress’ power to raise an army rather than the Commerce Clause.

    As for the seaman’s insurance, it’s not really a mandate on the seaman, but on the employer, which he is permitted to pass through to the seaman, and it is, essentially, a tax. The Volokh link that Purple Koolaid cited @ 7 is helpful in obtaining additional detail and follow-up to the initial article. It looks to me like Medicare, except that the seaman could access benefits right away instead of having to wait until he attained a particular age. So, this particular “mandate” may fall under Congress’ right to tax, as well as to regulate commerce.

    If you are a seaman you are, per se in commerce, giving the federal government a right to regulate your activities under the Commerce Clause. But, you could avoid the regulation by quitting your seaman job. In contrast, the Obamacare statute declares that you are automatically in commerce upon birth, and therefore subject to Commerce Clause regulation, which you cannot escape unless you die. That is the unprecedented and breathtaking expansion of Commerce Clause power which is being fought. What would be the limits to federal power under the Commerce Clause if Obamacare were upheld?

    The fact that these are the best precedents Obamacare supporters can find speaks to the incredible weakness of their position.

  • DonS

    As Joe already pointed out @ 5, the firearms example is irrelevant to the Obamacare issue, because it is rooted in Congress’ power to raise an army rather than the Commerce Clause.

    As for the seaman’s insurance, it’s not really a mandate on the seaman, but on the employer, which he is permitted to pass through to the seaman, and it is, essentially, a tax. The Volokh link that Purple Koolaid cited @ 7 is helpful in obtaining additional detail and follow-up to the initial article. It looks to me like Medicare, except that the seaman could access benefits right away instead of having to wait until he attained a particular age. So, this particular “mandate” may fall under Congress’ right to tax, as well as to regulate commerce.

    If you are a seaman you are, per se in commerce, giving the federal government a right to regulate your activities under the Commerce Clause. But, you could avoid the regulation by quitting your seaman job. In contrast, the Obamacare statute declares that you are automatically in commerce upon birth, and therefore subject to Commerce Clause regulation, which you cannot escape unless you die. That is the unprecedented and breathtaking expansion of Commerce Clause power which is being fought. What would be the limits to federal power under the Commerce Clause if Obamacare were upheld?

    The fact that these are the best precedents Obamacare supporters can find speaks to the incredible weakness of their position.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    What if you already have firearms? Would you still have to buy more to satisfy the law?

    The health care act requires people to continually and forever buy a service.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    What if you already have firearms? Would you still have to buy more to satisfy the law?

    The health care act requires people to continually and forever buy a service.

  • Susan

    Dr. Veith,

    This is OT, but sorta related since the HHS mandate has raised multiple problems. Please check out the new Catholic video regarding the upcoming elections. It’s stunningly good:

  • Susan

    Dr. Veith,

    This is OT, but sorta related since the HHS mandate has raised multiple problems. Please check out the new Catholic video regarding the upcoming elections. It’s stunningly good:

  • formerly just steve

    “Apparently, Dred Scott and the Fugitive Slave Act should have been enough to settle the slavery issue. I mean, some of the sons of the Framers signed those acts or made those legal decisions, so they must be valid. ”

    Well said. We all want to go back to the “founders and framers” to justify anything our team wants to do. How about going back to the thing for which we actually have an obligation: the Constitution. That’s not necessary because it’s not about proving anything but about showing how the other side is hypocritical. Nevermind that the none of the examples mentioned were comparable to the health care mandate.

  • formerly just steve

    “Apparently, Dred Scott and the Fugitive Slave Act should have been enough to settle the slavery issue. I mean, some of the sons of the Framers signed those acts or made those legal decisions, so they must be valid. ”

    Well said. We all want to go back to the “founders and framers” to justify anything our team wants to do. How about going back to the thing for which we actually have an obligation: the Constitution. That’s not necessary because it’s not about proving anything but about showing how the other side is hypocritical. Nevermind that the none of the examples mentioned were comparable to the health care mandate.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    It would be constitutional to create a single payer system by constitutional amendment. Why not try that if there is so much public support?

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    It would be constitutional to create a single payer system by constitutional amendment. Why not try that if there is so much public support?

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    It just occurred to me that a single payer system could feature deductibles based on income as well as health savings accounts. Maybe a deductible equal to say, 4% of your income. So, if you make $50k you would have a deductible of $2k per year that you would have to meet before you could use your insurance. If you make $200k, you would have an $8000 a year deductible. With this system you could put an amount equivalent to your annual deductible into a tax free health care account. This would also introduce consumer choice based on price, because everyone pays his own way for the small stuff. It would be predictable and stable so neither employers nor individuals would keep getting slammed with constant changes. This system would employ healthier incentives as well as subsidize the poor at the expense of the rich but allow lower income folks to influence the market while taking responsibility for themselves. I think the administrative workers should not be federal employees but work for a pseudo gov’t company that would not provide pensions only 401K defined contribution plans. That way the government could have their control and individual consumers would have a much greater effect on the health care market. No direct conscience conflicts. No undermining of the principle of private contracts entered into freely.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    It just occurred to me that a single payer system could feature deductibles based on income as well as health savings accounts. Maybe a deductible equal to say, 4% of your income. So, if you make $50k you would have a deductible of $2k per year that you would have to meet before you could use your insurance. If you make $200k, you would have an $8000 a year deductible. With this system you could put an amount equivalent to your annual deductible into a tax free health care account. This would also introduce consumer choice based on price, because everyone pays his own way for the small stuff. It would be predictable and stable so neither employers nor individuals would keep getting slammed with constant changes. This system would employ healthier incentives as well as subsidize the poor at the expense of the rich but allow lower income folks to influence the market while taking responsibility for themselves. I think the administrative workers should not be federal employees but work for a pseudo gov’t company that would not provide pensions only 401K defined contribution plans. That way the government could have their control and individual consumers would have a much greater effect on the health care market. No direct conscience conflicts. No undermining of the principle of private contracts entered into freely.

  • GGG

    From Randy Barnett:

    just because the federal government has the power to make you fight and die for your country does not entail that it has the totalitarian power to make you do anything less than this.

    http://volokh.com/2012/04/13/still-unprecedented-recycling-the-same-two-examples-of-supposed-economic-mandates/

  • GGG

    From Randy Barnett:

    just because the federal government has the power to make you fight and die for your country does not entail that it has the totalitarian power to make you do anything less than this.

    http://volokh.com/2012/04/13/still-unprecedented-recycling-the-same-two-examples-of-supposed-economic-mandates/

  • GENE

    I am amazed that no one took notice that those mandates were for the true Fedral powers and not overstepping states rights by imposing upon a state or its people in those states where the federal goverment only had interstate commerce legality. The high seas are not a state so it falls to federal since it was the power granted by the people to protect those borders.

  • GENE

    I am amazed that no one took notice that those mandates were for the true Fedral powers and not overstepping states rights by imposing upon a state or its people in those states where the federal goverment only had interstate commerce legality. The high seas are not a state so it falls to federal since it was the power granted by the people to protect those borders.


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