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.
And over at Volokh, a whole assortment of law professors demonstrate how lame Elhauge's arguments are.
Barnett makes a good point — that the mandate in these historical cases depended on the ship owners' engaging in "commerce" and thus being subject to Congress' regulatory powers. I'm only partially convinced though — mostly because Barnett only addresses two of the three examples Elhauge offers. What about the individual mandate for sailors passed in 1798? These were not ship owners engaged in commercial exchange — they were just wage earners. If Barnett is including this example as a mandate that is constitutional only because it counts as regulating commerce, that's a pretty expansive definition of commerce — it gives Congress the power to regulate the private purchases of anyone who is engaged in paid employment.
In any event — a good demonstration of why originalism is a bad idea — we must always pay attention to the ways that the Constitution has been expanded and interpreted over the centuries, not just to the 18th-century understanding.
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This just goes to show how, even today, constitutional mandates from as early as 1777 can still affect how our politicians work today. I'm pretty much surprised the Founding Fathers also mandated something along the lines of providing medical care for employees; I find that to be a bit forward-thinking, considering working conditions back in the day.
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