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.

Does the Historian's Hat Fit the Associate Justice's Head?

Like many Americans, I find the news that the Taliban has executed a seven-year-old boy to be deeply sickening. Reaction from world leaders has been fairly predictable — those who have commented on the case use it as an example of the unfathomable cruelty and depravity of the Taliban:

Afghan president Hamid Karzai:

"hanging or shooting to kill a 7-year-old boy . . . is a crime against humanity"

British Prime Minister David Cameron:

"If this is true, it is an absolutely horrific crime . . . If true, I think it says more about the Taliban than any book, than any article, than any speech could ever say."

When I read this story, I immediately thought back to Justice Thomas' recent dissent in Graham v. Florida, in which he argued that the Eighth Amendment should be understood to prohibit "methods [of punishment] akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted." In a footnote to that dissent, Justice Thomas argued that the Founding Fathers would not have considered sentencing a juvenile offender to life in prison without parole "cruel and unusual" because the common law "theoretically permitted [even] capital punishment to be imposed on a person as young as age 7,” reasoning that "It thus seems exceedingly unlikely that the imposition of a life-without-parole sentence on a person of Graham’s age would run afoul of those standards."

Did you notice the sleight of hand?

Scalia on Grave Markers

It's not every day that a Supreme Court Justice comments on grave markers. Today, Justice Scalia held forth on the subject and, once again, demonstrated the The History of the United States According to Antonin Scalia is made-up bullshit.

In the course of arguing that a giant cross erected in the Mojave Desert in 1934 cannot be regarded as a specifically Christian symbol, Scalia told the court that, "The cross is the most common symbol of the resting place of the dead."

Actually, that's not all he said:

JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

I'm no legal scholar, but I know a thing or two about gravestones. And Scalia is talking out of his ass on this one.