-Submitted by David Drumm (Nal), Guest Blogger
Harvard Law School professor Einer Elhauge writes that the very first Congress, in 1790, passed a law that included a mandate that ship owners buy medical insurance, but not hospital insurance, for their seamen. That Congress included 20 framers and was signed by another framer: President George Washington. In 1792, Washington signed another bill, passed by a Congress with 17 framers, requiring that all able-bodied men buy firearms. In 1798, Congress, with 5 framers, passed a federal law that required seamen to buy hospital insurance for themselves.
Why weren’t these examples cited by the Solicitor General during his oral argument?
Randy Barnett, looks at the example of ship owners required to provide health insurance for their seamen. Barnett sees no substantive difference between the purchase of insurance and a regulation requiring the purchase of life preservers or life boats. Ship owners are in the business of commerce and this law regulates how that commerce is conducted.
However, ship owners are not in the business of shipping seamen. Ship owners are in the business of shipping cargo, which sometimes includes passengers. Life preservers and life boats are directly concerned with the shipping business. A regulation requiring that seamen be able to perform their duties would be tied directly to the shipping business. A regulation benefiting those seamen unable to do their work, is not.
Barnett also looks at the Militia Act that required persons to provide their own firearms and notes that this is not a “purchase mandate” since the guns could be gifts or borrowed or inherited.
However, the insurance mandate doesn’t exclude insurance that comes as a benefit from a employer, or insurance that is provided under a parent’s policy.
Two years ago, David Kopel points out that the 1798 law imposed a 20 cents per month withholding tax on a seaman’s wages. This revenue was to be turned over to the Treasury Department and used to support sick and injured seamen. Kopel notes that the 1798 law is a good precedent for programs such as Medicare.
Although Elhauge’s examples are not without problems, the arguments against the first two examples also have their problems.
While a single-payer system would have circumvented the constitutional issues, it would have never made it through Congress.
UPDATE:
Einer Elhauge Replies
Professor Randy Barnett is a good friend who deserves enormous credit for coming up with a creative constitutional argument that has commanded such attention. But I don’t ultimately find his distinctions persuasive, and it isn’t because I like the health insurance mandate. I am on public record calling it bad policy. But that of course does not make it unconstitutional.
Although Barnett acknowledges that the early medical insurance mandates were exercises of Congress’ commerce clause power, he distinguishes them on the ground that they were imposed on actors who were in commerce, namely on shipowners and (in a third example he omits) seamen. His distinction thus means that he admits that these precedents show that if one is engaged in commerce in market A – here the shipping market or the seamen labor market – then Congress has the power to impose a mandate to purchase in market B – here the medical insurance market – even though markets A and B are totally unrelated. This concession conflicts with the argument of the challengers, which claimed that widespread activity in the health care market did not permit a purchase mandate even in the highly related health insurance market. Indeed, this concession seems to make the whole action/inaction distinction collapse because the fact that no relation between the markets is required means that commercial activity in any market – say, the market for employment or food or housing – would permit the Obamacare mandate. Because the Obamacare mandate applies only to those who have income that subjects them to income tax, it is necessarily limited to people who are active in some commercial market and thus his test would be satisfied.
On the gun mandate, Barnett offers two arguments. First, he says it was different because it did not require individuals to buy guns if they got them from someone else. But the Obamacare mandate similarly just requires you to have health insurance; you don’t have to buy it if someone else provides it for you, which is true for many who get their health insurance from the government or their employer, spouse, or parent. Plus, the gun mandate required the self-provision of consumables like ammunition and gunpowder that required purchasing more than one was already going to use.
Second, Barnett says the gun mandate was different because it was an exercise of the militia power rather than the commerce clause power. But I still think this misses the point. As Judge Silberman held, the text giving Congress the power to “regulate commerce” on its face includes a power to mandate purchases given 1780s dictionary definitions of “regulate.” To rebut this, the challengers have relied heavily on the notion that the unprecedented nature of purchase mandates allows us to infer the framers were against them. This example shows there was no such unspoken understanding. Nor does the text of the militia clause give much basis for a greater power to mandate purchases. To the contrary, the relevant portion of the militia clause gives Congress the power “To provide for… arming ….the Militia,” that is the power to provide the militia with arms, which seems the opposite of forcing individuals to self-provide those arms. If that text can be flexibly read to allow a purchase mandate, then such a reading is even more plausible under the Commerce Clause.
Moreover, even if the challengers do win on the Commerce Clause, the mandate must still be sustained if it is authorized under the necessary and proper clause. Given that the challengers admit the constitutionality of the provisions that ban insurer discrimination against the sick and argue that those provisions cannot be severed from the mandate, it seems undisputed that the mandate was necessary to exercise Congress’ commerce clause power to ban such discrimination. The challengers’ argument on the necessary and proper clause thus boils down to their assertion that purchase mandates are not “proper” – and these historic examples refute the notion that the framers thought there was anything improper about purchase mandates.
Finally, Barnett asserts that these are the only examples of federal purchase mandates. Even if that were the case, they seem pretty telling given their framer involvement and they rebut the claim such mandates were unprecedented. But in fact there are many other examples of federal purchase mandates. One federal mandate requires corporations to hire independent auditors. Another requires that unions buy bonds to insure against officer fraud. Such mandates fit the mold of allowing activity in one market to trigger a mandate in a totally different market, and as noted above, if that is constitutional, then so is Obamacare’s individual mandate.
H/T: LGF, Eugene Volokh.
Louise
G
To an extent they may see silly, the topic was novel as Constitutional design wasn’t part of a ready skill set
By the way, as an aside … You gotta love those Quakers both for Emancipation and Suffrage.
bhoyo,
The following is probably as close as you’ll get:
“If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice, or representation.”
(Abigail Adams)
At Seneca Falls (July 1848) a suffrage resolution was hotly debated and almost removed from the agenda yet a mere two years later suffrage was one of the main themes in the fight for women’s equality.
One gains a great deal of understanding into the Suffrage movement by studying those debates. One learns what mistakes were made and how to avoid repeating them.
I mention it because understanding the ratification debates of the late 1700’s can be beneficial in the same manner. In my opinion.
Back to the manuscripts. (I gotta tell you … some of those ratification resolutions put forward were downright silly.) 😉
Blouise,
Yes I saw it, lol. I am still trying to source it in the constitution itself.
Let us not forget the sense of urgency that surrounded all the ratification debates. Independence had been gained but the Articles had proved insufficient to the needs. The British, French, Spanish were all lurking at the gates. The Native Nations were raiding the frontiers and disgruntled Tories who had not fled were plotting within the cities.
Time was of the essence and the fragility of the moment recognized. Thus the Constitution was ratified without a Bill of Rights but based on the promise of one to come.
Ratification was not unanimous in every state. Many delegates voted against this Constitution even with the sense of urgency surrounding the situation. Why? What resolutions were put forward and defeated? What additional compromises were reached within each state’s ratification?
Yes, of course pbh is correct when he writes ” … I accept that the final choice was definitive.” but we are dealing with choices to be made 200+ years hence. The total intent of the free male population in 1787-88 is helpful in determining whether or not our choices today are Constitutional. (I trust you all did notice the specification of free male population in my wording.)
PBH,
By the way Edward Corwin is a great Bio of Marshall and the Court
pBH,
Well Fisher Ames was a Hamilton kind of guy, he didnt belive the Constitution when faitly considered had the power to create a bank, he did vote for the Bank, and was appointed a director. HMMM
Did they leave the powers open ended, so future generations could decide with better specifics in front of them ? They left an amendable document, with Artcile V as the process. The founders knowledge of the histories of popular government is astounding, your favorite guy, Hmailton, an excellent example. Classic liberal arts studies highlighted the topics, and they didnt have the pelthora of specialties we have today. Hamilton was brilliant and erudite, but those of lesser study were still pretty well versed. If you get a chance look at the books of Bernard Bailyn Ideaological origins of the Constitution gives a great view into the topics Americans considered important in Government. The list is neither brief nor shallow. Specifics mattered to them.
bhoyo
“Somehow I get the impression you dont think we have a lot of records regarding the ratification, or that it wasnt significant to the American Population.”
No, my consistent point is that we have voluminous records, as you have demonstrated by your own knowledge. Which means that ratification was considered not just on both sides of the coin, but on its edges as well.
I think you could make the case that it was studied to the nth degree of any raised surface of any physical representation of any figure agreed upon to be featured on any part of any of its surfaces.
Which is why I accept that the final choice was definitive.
pbh
bhoyo
“It seems that the inclusion of slavery and the 3/5s prvision is the grounds you employ to a selective reading of history.”
No. I tried to balance your concern for expanded Federal power against the reality of Slavery.
You always try to brush this aside as a “barbaric” practice. But it was more than that. Without the 3/5s, there is no Nation. And this was not a debatable clause. It was fixed. No question as to intent.
Meanwhile, Jefferson, Madison, and (?) Ames (I suppose) et al. voiced doubts about every exercise of Federal power. They beat the crap out of the interpretation of simple words such as “necessary” and “proper”. They formed a political party, where none existed before, to argue the fine points of that almost as much as you and I do today.
One ultimately has to ask why did they do this? What expression of Federal power did they really fear? What did they fear that the Federal power would want to thwart? Three sylables, rhymes with Knavery.
But, once again, we are getting off topic.
pbh
Somehow I get the impression you dont think we have a lot of records regarding the ratification, or that it wasnt significant to the American Population. Ratification was a huge deal here. At the Wisconsin Historical Society since 1976 have published the DHRC , the Documentary History of the Ratifying Conventions. Over 20 volumes, the result of editiors scouring newspapers records, pamphlets broadsides. In that vast collection are inconsequential rants, as well as measured and considered concerns of evry aspect of the Constitution discuused in exhausting detail. Why it was bigger than baseball according to Pauline Maier, whose recent book on ratification, of the very few out there, was barely limited to a scant 500 plus pages. When you made the baseball metaphor I had to laugh, Maier used a similar expression to describe the ratification would last more that one season. How much of this record of the dhRC is examined by constitutional Scholars ?
bhoyo
“What was the decision ? Oh, we have to read the proceedings to find out, and then maybe examine the Resolutions.”
The decision was, “We the People”, etc.
“Why no comment on Fisher Ames”
Because I am pitifully weak on his history, writings and etc.? Guess I have some reading to do. I’ll get back to you on that in a year. Or so.
I’m still trying to bulk up on Marshall.
pbh
bhoyo
“Some how I am to believe that a generation who studied the idea of self governanace, how to construct a government that would fulfill that idea, just convened to discuss the Constitution, expressed their ideas and then said lets give it a try, what the heck ?”
No. Of course not. But it is obvious that they understood they could not solve every problem. As such, they all agreed to defer resolution to a later date when the political situation would be more clear.
Unfortunately, they built a structure that made it ever less clear.
They attempted a compromise. It finally didn’t work.
pbh
PbH,
My position is that the Founders read, collectively, most of what you have read and they made their decision accordingly.
OK, now we are getting somewhere. What was the decision ? Oh, we have to read the proceedings to find out, and then maybe examine the Resolutions.
Why no comment on Fisher Ames other than ‘look at it this way’
Baseball metaphors aside, that was funny, I return to a discussion we had previously. It seems that the inclusion of slavery and the 3/5s prvision is the grounds you employ to a selective reading of history. I get the dislike for slavery, i do. It was barabric. Does that serve as a condemnation of the entire Constitution ?Or do we get to re write or ignore what we want because of slavery ? If that is your position, which it appears to be, then that is your right. I like All Americans have to deal with the truth of history> Slavery did make us look hypocrtical, a fact. That despite that, the design of the Constitution does serve as the singulat most effective model to balance the needs of liberty and energetic government, also a fact. Your idea seems to be that beacuse of the former we use the latter as model with 4 corners full of great suggestions. From there we pick the Founders we like and follow their lead.
bhoyo
“i do have doubts that even the Federalists thought the Bank Bill intra vires. Fisher Ames, a leading Federalist, wrote a friend about the vote, he described Madison on the floor of the House arguing against the Bill.”
Look at it this way. By the time Jefferson came into power, he had carte blanche. He could have defunded the bank, cancelled all its checks and sent the loan officers home. But he didn’t.
Why? Well, maybe he saw some good in it after all. Nothing like a stable currency and the opportunity to take out a homeowner loan to build a patio. And maybe he realized that, once he had his hand on the tiller, it would not be a good thing to attack a part of his own executive branch based on an arguable reading of Article 1.
I seem to recall that Jackson, a less temperate man than Jefferson, actually did attack the 2nd National Bank, the one that Madison signed into law. And the result was an immediate contraction of the money supply and a depression that lasted through his entire Presidency.
But, I know, you don’t want to consider political realities, not even from the point of view of the people you study.
My position is that the Founders read, collectively, most of what you have read and they made their decision accordingly.
pbh
We should be careful not to assume that we have better insight than the Original participants on these subjects. Which is to say they ratified what they wanted to ratify. Taking into account all of the various points of view, they made a collective and Democratic choice.
I of course agree with the idea you expressed that they did vote, and raitified what they wanted to. In that they left records of the proceedings, and Resolutions as to what they intended why not include that in the observations ? Some how I am to believe that a generation who studied the idea of self governanace, how to construct a government that would fulfill that idea, just convened to discuss the Constitution, expressed their ideas and then said lets give it a try, what the heck ?
bhoyo
“There were some minor potentates who wanted to protect their turf, that is true, but that certainly was not the majority of the voices that asked, what does this mean ?”
The fact that these minor potentates could contend with the majority had something to do with the Alice Through the Looking Glass affect of what we now call voter supression, but what I would call the 1788 practice of Human Property Owner Voter Amplification.
It was as if the Atlanta Braves (how I hate that name), were given four outs to three for every inning they played against the Yankees. Or as if the Charlotte Hornets were given 2 1/2 points for every basket against the Knicks. Or giving the Washington Redskins (see above) 10 points for every touchdown against the New England Patriots.
This was the deal that they cut in order to join the major leagues. They knew it could not last, but it had the virtue of expediency. Now, remind me, whose idea was this, where did he live and did his team get 4 outs or 3 per inning?
And by the way, there was an awful lot written in objection to this. There were conventions. There were protests. The Phillies, 76ers, and Eagles wanted no part of it. But it was finally accepted. So, I guess that is what they intended. For a start.
pbh
PBH,
Was the Bank Bill approved by Congress? Despite all of Jefferson’s objections? Despite the 3/5s tilt? Following that Assumption?
i do have doubts that even the Federalists thought the Bank Bill intra vires. Fisher Ames, a leading Federalist, wrote a friend about the vote, he described Madison on the floor of the House arguing against the Bill. Madison is described as wasting his time for reading the records of the Convnetions describing the limited powers of the government, he described at as waste of time, for even he knew the Constitution didnt have the power under a fair estimate of it’s powers.
bhoyo
“I was hoping for a specific response to the posts I had made. I get the count the votes idea in both ratification and legislation. But in that there was a lot written about the topic of ratification, to ask what they ratified is a valid question.”
Sure.
I forgot that I wanted to mention Lincoln at Cooper Union, which I think someone referred to before.
We should be careful not to assume that we have better insight than the Original participants on these subjects. Which is to say they ratified what they wanted to ratify. Taking into account all of the various points of view, they made a collective and Democratic choice.
And some of what they did was kick the can down the road. Including the slavery issue. And one of the things that allowed the Republic to hold itself together for its first 85 years was the fact that four of the first five Presidents, who accounted for 32 of the nation’s first 36 years, all came from Virginia, the state with almost half the slaves in the entire nation. That was principally a gift that the 3/5s rule gave us. And that was also something that was ratified. And kicked down the road.
They did this for the most practical of reasons. They understood that the States themselves were at risk unless a National government could be established that could itself act in its own defense. Better to put it in motion than forever argue about the affect of some of the finer points, such as “Necessary and Proper” or the 3/5s compromise.
You want to argue what was a specific, limited but not unpolitical point of view, imho, drawn from your extensive studies. And, imho, there was an opposing, equally political, point of view. I don’t think that you have ever argued that these opposing views were ever reconcilable. I do think that history proved that after 85 years of effort, they were not.
The resolution of these unresolved issues was left to later generations, purposfully, deliberately, intentionally. I am certain that good people of differing minds hoped for the best. Their best intentions were unfortunately defeated.
I recall you once pointing out that the Southern states were only allowed to re-enter the Union after swearing an oath of fealty which, I think you meant this somewhat, but not entirely, tongue in cheek, they only did at gun point.
To which I said, amen.
pbh