Monday, March 29, 2010

Good Historical Precedent for the Mandate

I've had a couple of posts up recently on misuses of American history to justify political or ideological positions today. The other day I wrote specifically about a liberal abuse of history that attempted to justify the health insurance mandate (which readers know I have major reservations about, despite my strong support for other elements of health reform). This morning, I noticed that Brad DeLong links to Paul O'Rourke's much, much better example of historical precedent for an insurance mandate (DeLong was also the source of the less convincing example I critiqued earlier). The legislation in question comes from the early Republic - the Act for the Relief of Sick and Disabled Seamen, of July 1798 (the Adams administration). The act laid a tax on all privately employed sailors, collected by their employers, of 20 cents a month (a lump sum payroll tax, essentially) to provide hospital care for the sailors. O'Rourke provides the full text of the law. Of course there are some differences - there is still no "mandate" per se (then again, there was nothing to mandate, as there was no health insurance at the time) - but the more fundamental point is the tax imposed on all sailors, whether they want the hospital care or not. This is the same mechanism that is being used to implement the mandate today.

I don't think this answers all the Constitutional questions. After all, I actually went in to the text of the Constitution to debunk the last attempt to justify the mandate, which I don't do here. I would think this one would be justified with the Article 1, Section 8 power to lay taxes and appropriate funds for the general welfare. One argument I could make is that this is really more of an example of a public option than it is a mandate (after all, no one is forced to purchase anything, they are simply taxed and provided a social service - just like Medicare). I think that's a valid argument to make about how far we should take this historical precedent. Nevertheless, I still think it is important to acknowledge, because this example is a lot sturdier constitutionally and as an analog to the current situation than the last one shared by DeLong about the militias.
Some people talk as if the Constitution were just the Articles of Confederation with lower voting thresholds. All significant additional powers granted to the federal government are downplayed. We spin this story that the commerce clause and "necessary and proper" and the General Welfare clause are inventions of FDR in the 1930s, or at the very earliest perhaps Progressives and trustbusters a few decades earlier. This simply wasn't the case. The Constitution is not another Articles of Confederation and we need to take that seriously.


  1. Although this would be an interesting topic to chat more about, sadly I never have enough time these days. Anyway, I liked this excerpt below even if it doesn't get into the meat of the issue and thought you might be interested:
    “My copy of the Constitution doesn’t have an individual right not to be insured,” said Charles Fried, a constitutional scholar at Harvard Law School, who served as solicitor general under former President Ronald Reagan.

    “I am prepared to say it’s complete nonsense,” Fried said of constitutional challenges to healthcare reform.

    He argued the individual mandate to buy insurance is similar to a lot of taxes.

    “If you don’t sign up for insurance, then you’re going to be some kind of drag on the system,” said Fried, who argued that the federal government has a right to tax behavior that costs society as a whole.

  2. Welcome to the blog, Justin. This wouldn't be Justin of M2E notoriety, would it? (I saw your Cambridge, Mass. location on the account).

    I'd seen that quote from Fried before, but it really made me scratch my head and get a little concerned about the state of Constitutional law. The whole point of the 9th and 10th amendment is precisely that we don't go to the Constitution to look for what rights we, as individuals, do have. We go to the Constitution to establish whether the federal government has a right to do something or not. It is assumed that the individual has the right unless that right is alotted to the federal government by the Constitution. So the claim that "my copy of the Constitution doesn't have an individual right not to be insured" is nonsensical.

    That isn't to say that I take the bizarrely minimalist interpretation of the Constitution that the Tea Party does (if one can even call their thinking on the Constitution an "interpretation"), but I don't think you have to understand that the Constitution enumerates rights of government, with the residual rights maintained by the people.

    I think his point about taxes is more relevant. I wouldn't be surprised at all if this passes constitutional muster over its identification as tax policy, which the federal government has wide scope to set. At that point, I'd say that my differences with the Congress over the mandate would be on the basis of policy and not law. I am getting gradually convinced there is no constitutional case against this - but I still think that's very bad logic on Fried's part.

  3. Hey Dan, you got the right Justin. I don't know where you always find the time to post all this and respond so quickly. I should be doing my reading for class right now so again I'm going to keep it brief, but I couldn't resist at least responding.

    I don't disagree with your first point, but I am a little surprised to hear you make it. That line of thinking seems to lead to me directly to many things such as a right to privacy or right to contract (controversial rights that that tend to vex opposite sides of the aisle). Moreover, many originalists might disagree with you and say the framers never imagined they were protecting such rights. Perhaps we should get into a more full discussion of your views on originalism at some point...but for the moment I'll assume your response would be that the intention of the framers was to create a more flexible document and/or to reserve all those rights they couldn't think to enumerate. The problem with reading at such a high level of generality is that it is hard to contain the logic to just one area, and after awhile you have a very broad understanding of the Constitution (for better or worse - but most originalists would say worst). Although I don't have any off the top of my head, I certainly think there are examples of cases where the framers' understanding/intent specifically would contradict principles you could find valid under such broad readings. So Fried's logic may not be good, but if it is not then it raises a lot of other questions about your opinion on the validity of views that many conservatives/libertarians/federalists hold about the Constitution.

    As for tax arguments, as I understand it there actually are some constitutional arguments there, though I don't agree with them and traditionally the courts are pretty deferential when it comes to tax legislation. If you really wanted, you could argue that this is a direct tax (despite its label as an excise tax, which would be valid), and that is prohibited. But I think in the end, that argument is bound to fail and one has to ignore a lot of (in my mind relevant) history to really make it. So I agree with you it is valid on those grounds.

    Anyway, I will leave the policy debate for another day as I have to run.

  4. :) I'm an early riser - most of these posts get written before 7, although perhaps cleaned up and posted later. I have no such excuse for what I post on Facebook.

    Good thoughts. With no legal background, I really have a makeshift view of the Constitution. Perhaps I'll lay it out more explicitly in a future post. Thanks for your thoughts!


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