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.