Eric Spiegelman has an interesting post on how the legal establishment got the individual mandate so wrong. In it, he writes:
How far can the definition of Congress’ enumerated powers be stretched? As Justice Scalia asked during oral arguments: if Congress can force you to buy health insurance, can they also force you to buy broccoli? The question I like to ask is: what if Congress forced you to buy a gun?
But Congress has forced Americans to buy guns. It’s in the Militia Acts of 1792. The relevant section is a bit lengthy, so I’ve bolded the key parts:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such captain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
Now, you could argue that this was not done under the Commerce Clause. But as Yale’s Akhil Reid Amar says, “the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a ‘well-regulated’ militia with a mandate, why can’t Congress regulate interstate commerce the same way?”
Incidentally, that’s not the only time an early congress mandated that Americans purchase privately sold products:
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.[...]
Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.
That’s from Einer Elhauge, a professor at Harvard Law, who continues, “not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional.”
Also of note: unlike the mandate to buy muskets, the maritime mandates were exercised under the Commerce Clause.
By: Ezra Klein, The Washington Post Wonkblog, June 26, 2012
On the morning of July 3, 1776, John Adams, delegate to the Second Continental Congress from the Massachusetts Bay Colony, wrote his wife Abigail:
Yesterday the greatest question was decided, which ever was debated in America, and a greater, perhaps, never was or will be decided among Men. A resolution was passed without one dissenting colony ‘that these United Colonies are, and of right ought to be, free and independent states, and as such they have, and of right ought to have, full power to make war, conclude peace, establish commerce, and to do all the other acts and things which other states may rightfully do.’ You will see in a few days a declaration setting forth the causes which have impelled us to this mighty revolution and the reasons which will justify it in the sight of God and man. A plan of confederation will be taken up in a few days.
When I look back to the year of 1761 and recollect the argument concerning writs of assistance in the superior court, which I have hitherto considered as the commencement of the controversy between Great Britain and America, and run through the whole period from that time to this, and recollect the series of political events, the chain of causes and effects, I am surprised at the suddenness as well as greatness of this revolution. Britain has been fill’d with Folly and America with Wisdom, at least this is my Judgment.
Time must determine. It is the will of Heaven that the two countries should be sundered forever. It may be the will of Heaven that America shall suffer calamities still more wasting and distressing yet more dreadful. If this is to be the case, it will have this good effect, at least: it will inspire us with many virtues, which we have not, and correct many errors, follies, and vices, which threaten to disturb, dishonor, and destroy us. The furnace of affliction produces refinement, in states as well as individuals. And the new governments we are assuming, in every part, will require a purification from our vices and an augmentation of our virtues or they will be no blessings.
The people will have unbounded power. And the people are extremely addicted to corruption and venality, as well as the great. I am not without apprehensions from this quarter, but I must submit all my hopes and fears to an overruling Providence, in which, unfashionable as the faith may be, I firmly believe.
In the evening, he sent a second letter, in which he wrote:
The second day of July, 1776, will be memorable epocha in the history of America. I am apt to believe that it will be celebrated by succeeding generations, as the great Anniversary Festival. It ought to be commemorated, as the day of deliverance by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp, shews, games, sports, guns, bells, bonfires and illuminations, from one end of the continent to the other, from this time forward forever.
You will think me transported with enthusiasm; but I am not. I am well aware of the toil, and blood, and treasure, that it will cost us to maintain this declaration, and support and defend these states. Yet, through all the gloom, I can see the rays of light and glory; I can see that the end is more than worth all the means, and that posterity will triumph, although you and I may rue, which I hope we shall not.
Happy Birthday America.
By: Peter Roff, U. S. News and World Report, July 3, 2011