A pillar of the Tea Party movement is that the U.S. should return to a limited, originalist federal system that strictly adheres to the Constitutional principles of the founding fathers. In particular, the founders would never impose national mandates to purchase health insurance or other goods.
Except that they did.
Last month, historian Einer Elhauge wrote a fascinating piece in the New Republic, listing several purchase mandates, including health insurance mandates, that our first Congresses passed and that Presidents Washington and Adams signed.
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. 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 not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.
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. ...And this act was signed by another founder, President John Adams.
Ayn Rand was not a founding father; George Washington, John Adams and many members of the first Congresses were.
If purchase mandates passed muster with those actual founding fathers, can the originalist underpinnings of these policies really be questioned?
Tea Party members are right to blame Washington for health insurance mandates; they've just got the wrong Washington.
