Now that SCOTUS has finished hearing the challenges to Obamacare, we settle down to wait a few months for their opinion. (Elvis save us from the wrath of those who chant f-r-d-e-e-d-o-m-e-! at every loss if the justices say, yeah, okay.)
The first US Supreme Court, 1790
Meanwhile, this is interesting. From friend Ed this morning:
. . . three laws, passed in 1790, 1792 and 1798 respectively . . . provide for mandates not unlike the one being considered by the Supreme Court this week . . .:
[In] 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves. In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.
PolitiFact dug deeper into Elhauge’s claims and found evidence that mandates were approved by Congressmen who had also signed the Constitution; refuting the assertion that the laws passed despite framers’ objections:
There was no roll call for the House and Senate bills requiring health care for seamen. But on the proposal mandating the purchase of a musket, firelock or rifle as part of the larger bill to establish a uniform militia, 10 of the 14 framers whose votes were recorded endorsed the measure.Not only did mandates pass muster with the Framers in Congress, they were signed into law by George Washington and John Adams.
You can have wealth concentrated in the hands of a few, or democracy. But you cannot have both.
Whatever Works 
Hehe. Seamen. This case is definitely bringing up a lot of interesting issues. I read another article that suggested rejecting the health care mandate could have repercussions on older cases like Brown v. Board of Education.
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Hi joesix, welcome. I hadn’t thought about how it coud affect older cases like Brown were it rejected. It is indeed going to be interesting.
(you’re a good writer . . . are you trying for a book?)
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[In] 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen
I’ve seen these cases. Interesting stuff.
The first, requiring “health care” be provided to sailors? First, you have to be a ship owner. Not just a living citizen. Then you must have a ship that exceeds a regulated size. Only then are you required to provide reasonable health care type stuff to the sailors.
Again, you have to agree to enter the commerce; shipping.
the proposal mandating the purchase of a musket, firelock or rifle
This one is closer to the current Obamacare arguments. By simply being alive, certain people [able bodied men of a certain age] were required to enter into commerce. I would disagree with this as well.
But you’re right, it is an interesting point.
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I’ve almost moved beyond my own hopes for success of this case because I’m finding the process so fascinating.
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I’ve almost moved beyond my own hopes for success of this case because I’m finding the process so fascinating.
I’ve had to admit that I’ve gone geek over this whole thing. Very fascinating.
I hope that the decision includes a cross-over vote from both sides. That is I want one of the 5 to vote in favor of the government and one of the 4 liberals to vote against the government.
However it comes down, 5-4 or 6-3 or even 7-2, I want bipartisan support from both ideological sides.
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I think it’s 7-2 if they are upholding the mandate because Roberts will push for more unanimity on such a momentous decision. I think he might be the firrst cross over if Kennedy joins the liberals.
But if they toss the thing out, would it matter so much? A 5-4 on NOT expanding the commerce clause doesn’t seem quite a momentous as sayying yes.
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The commerce clause is truly wonderful. You really can make it say anything. Damn shame the Court never considered how birth control affects interstate commerce. A condom used in one state can definitely affect the sale of baby food nine months later in another state.
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I have heard of the Militia Act mandate but not the other. Thank you for this post… more ammo for debates 🙂
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Radical hippies, all.
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Jeez, I cannot believe that seemingly intelligent people will make a statement like: “In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm.”
If one would simply read (gasp!) the provision in it’s entirety one would realize the quote is not even close to being accurate.
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Steve – I just read it – it mandates ‘able bodied’ citizens to “provide himself with a good musket or firelock, a sufficient bayonet and belt . . ” It goes on to describe ammo etc they are required to provide themselves with.
They do go on to define ‘able bodied’ citizens as males bertwwen 18 and 45. But there’s no question that the act required those men to ‘acquire’ weapons. The usual method of acquisition of course would be to purchase said weapons. Purchase is commerce and the law was a mandate.
A photo reproduction of the actual bill is here:
http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=394
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We ALL pay Social Security right?
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Ms. Holland,
That is a really thin argument to equate self arming a defense force with buying health insurance . But since you went down that road, let us take it to the next level . President Obama’s stated goal is to put private insurance companies out of business. Your beloved Central Authority would be eventually the only source for this insurance. No choice of coverages.
To go back to the militia act, it is then the same as President Barak Hussein Washington putting all of the private musket makers out of business, and then requiring the Minute Men to buy only poor quality and over priced muskets from Madam Quartermaster Kathleen Sebelius. We wouldn’t want individual militias being able to acquire better weapons than the rest.
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Except Alan, there is absolutely no such thiing in the law. And the insurance companies are deliriously happy that they’ll be getting so much new business.
Of the universal systems around the world, very few are single payer – most use, as does the ACA, a combbination of private insurance and government provided health care.
I love how you are so inside Obama’s head and always know what his secret intentions are! How do you manage that?
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Hmm, several problems with this whole issue. First off, there was no heath insurance in 1792. Secondly, that law applied only to ships of a certain size and number of crew that were going on voyages OUTSIDE of US territorial waters. The requirement was for ship owners to provide a locker of medicines and instructions on their use. The statues were part of admiralty law and is the exclusive province of the federal law makers. It did force citizens in the states to acquire insurance. It was not in conflict with states rights.
What makes this whole claim so nonsensical is that judicial review of the constitutionality of laws was not assumed until 1803 with Marbury v. Madison.
That gun thing. The law states that men between the ages of 18 and 45 were part of the unorganized militia and as such must make themselves ready to be called to active duty at any time. It wasn’t just a go out and buy a gun. The law was more akin to drafting every able-bodied man for the defense of the country. The big difference is that as a member of the unorganized militia you were required to arm yourself; a common practice in the 1700’s.
If liberals want to win an argument, you need to really be far more honest and accurate with your claims. Otherwise you just make yourself look foolish.
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[The law was more akin to drafting every able-bodied man for the defense of the country.]
And if the government provided the weapons, using Alan’s reasoning, they would be inferior weapons, arms manufactureres would be put out of business, the militiaman would have no choice of weapons . . . .
But that’s not at all the case with the insurance mandate (as Alan seems to think); people would choose their insurance provider. No one mandates who they use, only that they ‘acquire’, because “in the world of 2012 it is a common practice” for societies to do so, and a ‘common practice’ for societies to provide health care to all citizens.
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