Needless to say, the Tea Party movement has given me a lot of ammunition lately. Their abuse of history has been by far the most conspicuous, and they use it to buttress one of the most radical political positions on the market today. So when I stumbled across a liberal abuse of history in defense of a narrow legal position, I felt an obligation to share it, simply because I've been pointing to the Tea Partiers so insistently.
Ian Millhiser at Think Progress argues that there is precedent for the individual health insurance mandate. Virginia Attorney General Cuccinelli, and others, have argued that the Constitution gives the Congress no authority to force people to buy a good or service. In his rebuttal, Millhiser points to the Second Militia Act of 1792 (HT - Brad DeLong), passed during the Washington administration. This act required able bodied men to purchase all manner of equipment so they could defend the country if called upon. Washington requires people to buy guns; Obama requires people to buy health insurance - what's the problem?
The problem comes in when you dig a little deeper into what gave Washington the authority to demand those purchases. The first place to look - the first place you should always look - is Article 1, Section 8 of the Constitution, which lists the powers of Congress. Other powers of the government come up in other places, but this is the mother lode. Several relevant military powers are included, but for brevity I'll note the most important for this case:
"To provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the service of the United States"
There are also various powers for making rules governing land and naval forces, which can also be mentioned. The point is, our most important question today is "what gives the federal government the right to force us to buy health insurance". A historic example of a legitimate past forced purchase may indeed be enlightening, but only if the legitimacy of that past legislation is derived from a power that can also be applied to health insurance (i.e. - a general power to mandate purchase of goods or services). That's not the case here. Nobody has pointed to such power, they've simply pointed to the Second Militia Act. And I would contend that the Second Militia Act is derived from the authority of Congress to govern and regulate the militia. Governance of the militia means telling members of the militia (able bodied males) what is incumbent upon them as militiamen, such as staying well equipped. This power is perfectly legitimate, but I don't see how it carries over to health insurance at all. It's a misuse of history.
I personally think of myself as a Constitutional originalist. I do think it's a meaningful document that needs to constrain government today. I don't think we can just invent new rights a la FDR. Nevertheless, I take issue with a lot of other people who also call themselves "originalist", because I think that these "originalists" discount the extent to which the Constitution gives discretion to future generations and future Congresses for their own self-government. For example, Congress has the explicit authority to appropriate money to provide for the General Welfare. That power is vague. It is "elastic". It is entirely constitutional. Many "originalists" get frustrated with the application of this power, but I don't understand why. If the Congress had intended "General Welfare" to mean anything other than "General Welfare" they wouldn't have written it that way. We need to be judicious and deliberative about exactly what a wise appropriation for the General Welfare might be - but that is a question for public and Congressional debate, not a question for constitutional lawyers. The power is very clear. So I'm an originalist, but I'm an originalist that reads a great deal of deliberate inclusion of discretion into the text of the Constitution. I simply don't see any other way of reading the document.
No reading of the Constitution, in my mind, provides a general authority to mandate the purchase of goods and services. Certain powers - such as the militia powers - give some scope for such mandates. But I find no power that could justify the health insurance mandate.