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The Founding Fathers Said What?

I must hand it to Harvard: only at Harvard could someone be educated enough to make such a weak argument:

In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed.

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.

Einer Elhauge, a Harvard law professor, is the author of this piece. He cites three example: two mandates on shipowners insuring their sailors and a mandate on able-bodied men to buy firearms.

There are a huge number of problems with this argument, which is probably why, as Randy Barnett points out, the argument was dismissed by the lower courts and not even mentioned by the Solicitor General. First, the Founding Fathers also passed the Alien and Sedition Acts, the last of which was blatantly unconstitutional. These acts all preceeded Marbury, when judicial review was really established. Had the concept of judicial review been in place, they might not have been upheld.

Second, these mandates are in areas that are a federal concern. The first two deal with ships in navigable waters, which are and have been federally regulated. The third concerns the militia which is an explicit federal concern. Neither involves a purchase requirement on people not engaging in commerce and neither forces commerce to be undertaken. To compare this to a mandate covering the largest industry in the country, a mandate that will affect every citizen and compel them to spend thousands of dollars is ridiculous.

Third, the modern insurance industry, as we know it, did not exist until the mid- to late-19th century. What the hell was this insurance? We’ll go to Volokh again, who points out that this was, in fact, a tax levied on ships coming into American ports that was used to fund hospitals for sailors. To go to the hospitals, the sailors had to produce a proof that the tax had been paid. This isn’t really comparable to Blue Cross. As was pointed out about a million times during the healthcare debate, Congress could have made this Constitutional by putting it in as a tax used to pay for the uninsured. But they were so obsessed with not appearing to raise taxes, they didn’t go that route.

You can feel the desperation out there, can’t you? They are clutching at straws, trying to render the Court’s verdict unacceptable before it is even delivered.

11 comments

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  1. HARLEY says:

    as i was reading , the “mandate” was for cargo ships over 150 tonnes, to have a medical chest aboard ship… nothing more.. no insurance///

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  2. Monolith says:

    After all we’ve been taught about the Revolution and the formation of the country, how can anyone honestly believe this mandate precedent shit?

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  3. HARLEY says:

    mandate on able-bodied men to buy firearms.

    OH IF ONLY!

    Id have the FED-GOV, pay for a few of these… with optics!

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  4. Hal_10000 says:

    Harley, one laws was for a medicine chest. The other was for hospitals for seamen. It’s just ridiculous.

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  5. HARLEY says:

    After all we’ve been taught about the Revolution and the formation of the country, how can anyone honestly believe this mandate precedent shit?

    the operative word there is “WE” WE know the difference… , “THEY” the unwashed masses, yearning to get free condoms on my dime, are the ones that have and will buy that particular puppy…

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  6. Kimpost says:

    the operative word there is “WE” WE know the difference… , “THEY” the unwashed masses, yearning to get free condoms on my dime, are the ones that have and will buy that particular puppy…

    The important thing is whether nine people in robes know the difference or not. They probably do.

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  7. HARLEY says:

    The important thing is whether nine people in robes know the difference or not. They probably do.

    all we need is 5…………………..

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  8. Mississippi Yankee says:

    “Ya got a nice little court there… hope nothing happens to it…”

    /spoken in my best So. Brooklyn-ese/

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  9. HARLEY says:

    lets hope obama doesn’t get a wild hair in his as and decide to appoint a few more justices.. you know to be fair..

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  10. HARLEY says:

    mmm must have missed that HAL, my eyes started to glaze over…..

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  11. AlexInCT says:

    This is the biggest pile of shit of an argument ever made. Seriously, the left is insane and thinks the world is full of idiots. They actually want to use regulation imposed on militia and the military to both compel citizens to buy whatever government wants them to AND to make the case that only members of the militia should be armed to disarm a populous they fear has had enough of their abuses of power.

    The stretches in logic that the left has been making to justify the indefensible around Obamacare are frightening. It basically leaves anyone paying attention with no doubt that the ONLY time the left feels big government’s power should be restricted in is when they are not the ones wielding that power. Otherwise the nanny state has both the authority and power to do whatever it wants, the constitution and freedoms be damned, as long as it claims to be doing it for the good of all people, and either under the now all powerful and power granting commerce clause or whatever other invented reason. This is a travesty.

    The framers of the constitution and the makers of this country are spinning in their graves. I bet if we put some magnets on them we could power NYC indefinitely with the power output from their angry rotations. The lemmings that want more free shit, like they do in this healthcare takeover debate, will get neither free nor decent healthcare, and they are going to give up more freedoms to get shafted.

    Fuck I hate lazy & envious freeloaders, but I burn with rage at the politicians that have made their career and increased their power by pandering to these bastards, with a passion.

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