Originalist Smackdown: Healthcare Mandate Edition

In The New Republic, Harvard Law Professor Einer Elhauge delivers an awe-inspiring smackdown of the "originalist" case against the healthcare mandate:

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.

I have my own problems with Constitutional Originalism and its flawed theory of history, but this is just straight up pwning. Elhauge goes on to detail several instances in which actual Congresses made up of actual Founding Fathers passed mandates, including an individual mandate that required sailors to purchase medical insurance.

If such a ruling would not hurt so many millions of vulnerable Americans, I could almost wish that the Supreme Court would strike down the mandate just so that we could have this awesome example of "actual" Founding Fathers vs. "original" Founding Fathers. I may get that wish fulfilled anyway, much to my sorrow.

More coverage from Slate here.

Name of the Day

I'm sitting here, watching Who Do You Think You Are, working on Pete's family tree. He's descended from pretty much everyone in colonial New England (he's a Beecher!), so it's fun for me.

My favorite names in the branch I'm working on are Oliver Fisk (b. 1750) and his wife, Olive Wickes (b. 1750). Together, they form the Oliver-Olive Fisk-Wickes family.

John Copley, Briton

Jane Kamensky has a great article in Sunday's Boston Globe about how Americans think about John Singleton Copley. She argues that our collective memory of Copley — as embodied in the MFA's exhibition of his work in its "Revolutionary Boston" exhibit — positions Copley as an American and a participant in the Revolutionary movement, but that it would be more appropriate to think of him as what he was: a British provincial.

But Copley did not imagine himself that way, and might well have been surprised to discover how thoroughly America has claimed him. Copley’s life, his works, and his words defined him as a subject of the British empire, not a citizen of the American republic. Born in British America in 1738, he died in his comfortable home on Hanover Square in London in 1815, having spent the Revolution, the War of 1812, and more than half of his long life in England. Copley was buried as he was born: a loyal subject of the crown. He never set foot in an independent United States.

 Read the whole article.

The more I read about the MFA's Art of the Americas Wing, the more I wonder about whether the gap between academic history and public history is bridgeable.

On New England Aesthetics

Here is John H. Sheppard, member of the board of directors of the New England Historical and Genealogical Society and librarian of the Society (1861-1869), on the aesthetics of colonial New England:

It seemed not enough to erect temples to God, without regard to any order of architecture, without form or comeliness, looking like steepled barns, and then to use them for unholy purposes and town meetings; but, in too many instances, the very churchyards were neglected, unfenced, and uncared for, the graves exposed to horses cattle, and dogs, not a tree nor a flower suffered to shade or bloom there, and neither walk nor path laid out among the falling, struggling stones, for the pensive mourner to muse over a loved one, or drop a tear over his grave.

Sheppard was an Englishman, raised in the Anglican church. I will keep "steepled barns" close to my heart. 

"Traces of the Trade" Screening at Harvard

If you are in Cambridge this evening, please consider attending this screening of Traces of the Trade: A Story from the Deep North. The event will include a discussion with the filmmakers and academics involved with the Harvard and Slavery Research Project, including distinguished professor Evelyn Brooks Higginbotham. The screening will start at 6:00 in the Fong Auditorium (Boylston Hall) on Harvard Yard.