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.

Cell Phone Video and the Second Amendment

This morning, Andrew Sullivan linked to an ABC article about civilians who have been arrested for capturing video or audio recordings of on-duty police officers. Many discussions of this subject — including the article mentioned above — frame citizens' rights to tape police officers in terms of First Amendment rights, but I'm not sure I agree. 

To me, this is an issue of Second Amendment rights. If the Second Amendment is meant to arm citizens with the tools necessary to protect themselves against encroaching state power, I think that cell phone cameras and YouTube are the muskets of the 21st century. No modern civilian or group of civilians, no matter how well-armed with guns or bombs, has any prayer of fighting off the police (or army) by force. If police officers or soldiers are abusing their power, the best weapon of self-defense available to the modern American is media exposure.

Hey, Let's All Just Use the 1790 Census Form

No problem!

Happy Constitution Day!

When I was teaching in California, we were required to devote the week of September 17th to the study of the Constitution. At all grade levels. In the low primary grades, most teachers confined themselves to writing a "Class Constitution" that set out goals and rules for the year.

I had second graders, so they were able to handle a little bit more. As long as they finished the week knowing that the Constitution is a list of rules for how to run the government, I was happy. We also made a "Freedom Quilt" (I know, I know), which was a 6-foot long piece of construction paper on which each child decorated a square with "America is . . . " It was goofy and indoctrinating, but some of the kids actually wrote pretty touching things. Not too surprising when you consider that most of the kids in the class were first generation Americans or immigrants themselves.

Whenever we talked about America or immigration, the kids always had hair-raising stories to tell. One little girl told us about how her father had to fight off snakes in the desert and eat rats when he went back to Mexico to get her mother. A friend of mine who taught fourth grade had a student who told the whole class about how he and his mother swam to San Diego one night, only to be caught, be sent back, and try again. I never really knew what to say to them.

Anyway, happy Constitution Day, and good luck to all of those kindergarten teachers who have to find some way to work these lesson plans in. Making a construction paper flag counts.