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.
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 Were they ever repealed?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.