Exclusive: The negative tone of the Republicans on the U.S. Supreme Court suggests that the Affordable Care Act, with its individual mandate to buy health insurance, may be overturned as “unconstitutional” by a partisan 5-4 vote. But key Founders had a less hostile view toward mandates in 1792, as Robert Parry reports.
By Robert Parry
If Fox News and Antonin Scalia were around in 1792 when James Madison and George Washington helped push through the Militia Acts requiring citizens to buy muskets and other military supplies, those Founders likely would have heard complaints like: “What else will the federal government do? Make us buy broccoli?”
Okay, broccoli wasn’t really grown in the United States at the time, arriving in the next century with waves of Italian immigrants. But the distinction between the founding era and today is illustrative of how the seriousness of American politics has eroded.
In 1792, just four years after ratification of the U.S. Constitution, Madison and Washington two key Framers of the document saw nothing wrong with mandating Americans to buy certain products in the private market. It was simply a practical way for the government to arm militias to put down insurrections and defend against foreign enemies.
Last week, however, the Republican majority on the U.S. Supreme Court behaved like Fox News pundits, offering goofy hypothetical possibilities about what Congress might mandate if the Affordable Care Act’s requirement to buy health insurance stands. We heard lots about required purchases of broccoli, burial insurance, cars, cell phones, etc.
The debate also was influenced by the false assertion that never before in U.S. history had the federal government required Americans to buy a private product. For “originalists” like Justice Scalia that was particularly important because he claims to believe that only actions reflective of the Framers’ original vision can be constitutional.
But here was a stubborn historical fact, that Madison, as a member of the Second Congress, and Washington, as the first President, had supported the Militia Acts of 1792, which gave each able-bodied white male of fighting age six months to “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.”
Yes, I know that the law was passed under Article Two powers of the Executive, which makes the President the Commander in Chief of the military, not Article One’s Commerce Clause, which grants Congress unrestricted power to regulate interstate commerce. But the principle is the same, that the government can order Americans to buy something that Congress deemed necessary for the country’s good.
So Long Ago
I’m also aware that the musket precedent is dismissed by some because it was so long ago. But that should be exactly the point when Scalia and the other Republican justices are weighing the constitutionality of the health insurance mandate.
If mandates were okay for Madison, the Constitution’s architect, and Washington, who presided at the Constitutional Convention, then that should be determinative on the question of whether mandates passed constitutional muster with the Framers. Madison and Washington along with other men in the Second Congress and inside Washington’s administration were, like, the actual Framers.
The fact that the musket mandate was approved just four years after the Constitution’s ratification should count even more for the “originalists” like Scalia than if some mandate had been approved later.
Unlike the petty partisans of today, the Framers of the Constitution were mostly pragmatic individuals. Sure, they cared about liberty (at least for white males), but they also were driven by the need to build a strong nation that could maintain its independence against the encroachment of European powers.
That was why Madison proposed the strong Commerce Clause in the first place. He understood that only national action and coordination could enable the United States to marshal its resources properly and fend off Europe’s predatory economic tactics.
Madison’s Commerce Clause idea even predated the Constitution. He initially proposed giving the federal government control over national commerce when the Articles of Confederation were still governing the country (from 1777 to 1787).
General Washington, who hated the Articles because they had created a weak central government that often left his troops unpaid and unfed, backed Madison’s proposal when it was before the Virginia Legislature after the Revolutionary War. In a letter, Washington expressed the need for greater national unity.
“The [commerce] proposition in my opinion is so self evident that I confess I am at a loss to discover wherein lies the weight of the objection to the measure,” Washington wrote. “We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”
Madison failed in his bid to attach his commerce amendment to the Articles, but he revived the idea when the Constitutional Convention convened in Philadelphia in 1787. Though the convention was supposed to simply propose changes to the Articles, Madison and Washington engineered the scrapping of the earlier system to be replaced with an entirely new Constitution.
There at the Start
So, on the first day of substantive debate May 29, 1787 as a fellow Virginian, Edmund Randolph, presented Madison’s constitutional framework, the Commerce Clause was there.
Madison’s convention notes recount Randolph saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation such as a productive impost [or tax] counteraction of the commercial regulations of other nations pushing of commerce ad libitum &c &c.”
In other words, the Founders at their most “originalist” moment understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum &c &c” notation suggests that Randolph provided other examples off the top of his head.
So, Madison and other key Framers recognized that a legitimate role of Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic success.
After the Convention, when the proposed Constitution was under fire from Anti-Federalists who favored retaining the states-rights orientation of the Articles of Confederation, Madison returned, in the Federalist Papers, to arguing the value of the Commerce Clause.
Ironically, Madison considered the Commerce Clause one of the least controversial elements of his new governing structure. In Federalist Paper No. 45, writing under the pseudonym Publius, Madison referred to the Commerce Clause as “a new power; but an addition which few oppose, and from which no apprehensions are entertained.”
In Federalist Paper No. 14, Madison explained how the Commerce Clause could help the young nation overcome some of its problems with communications and access to interior lands.
“[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.
“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”
The building of canals, as an argument in support of the Commerce Clause and the Constitution, further reflects the pragmatic and commercial attitudes of key Founders. In 1785, two years before the Constitutional Convention, George Washington established the Potowmack Company, which began digging canals to extend navigable waterways westward where he and other Founders had invested in Ohio and other undeveloped lands.
Thus, the idea of involving the central government in major economic projects a government-business partnership to create jobs and profits was there from the beginning. Madison, Washington and other early American leaders saw the Constitution as creating a dynamic system so the young country could grow and compete with rival economies. [See Consortiumnews.com’s “Did the Founders Hate Government?“]
In that sense, the Affordable Care Act comports with the original intent of the Commerce Clause, to keep U.S. industry competitive with international rivals. Today, one of the heaviest burdens on U.S. companies in relation to foreign competitors is the soaring cost of health care that has made American products more expensive.
The Constitution also explicitly empowers the federal government “to promote the general Welfare” and when tens of millions of Americans are without affordable health care and tens of thousands are dying each year because they can’t afford to see a doctor, that is surely an impediment to “the general Welfare.”
But what is perhaps most striking when comparing the founding era of the United States to today’s politicized and petty times is the stunning loss of pragmatism and common sense.
Then, the Founders were finding ways to do what was necessary to build the nation. Now, partisans like Scalia and Fox News are all about scoring debating points. They conjure up arguments to win for the GOP side even if the nation loses.
Today’s Republican partisans, including justices on the Supreme Court, denounce the health-insurance mandate even though it was originally a conservative proposal from the Heritage Foundation. Yet, once a Democratic president embraced it, the individual mandate became a socialistic affront to the Constitution.
One might reflect upon Washington’s letter supporting Madison’s commerce idea: “We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.
To Robert Parry,
Sir, forget about ‘muskets’, some people don’t see that far back. Therefore lets move the ‘mandate argument’ closer to the present and bring in the subject to the ‘mandate’ in “Medicare”.
However if the ‘mandate’ in the Affordable Healthcare Act’ is deemed unconstitutional, then so it’ll be the ‘mandate in ‘Medicare’
And what about that, eh?
Will the Justices be willing to wipe out, with the stroke of a pen, the ‘Medicare’ mandate, and put an end to health care benefits for millions of seniors now, and in the future?.
I’m racking my brain but I simply cannot understand the relevance of this musket mandate analogy to the individual health mandate. If the author is implying that the founders would likely support forcing all Americans to purchase policies from these greedy, monstrous corporations, he should have his head examined. Corporations as we know them today didn’t even exist back then, and the founders most likely could never have imagined a society such as ours where average people are all at the mercy of these monstrosities. May I remind you that some of these insurance companies are guilty of murder? They routinely deny coverage to those who need it, often resulting in tragic deaths. They should be dismantled and prosecuted, but instead we’re All forced under penalty of law to buy their crappy policies.
The healthcare reform act does away with the insurance practice of denying coverage for pre-existing medical conditions. It also requires the insurance companies to spend no less than 85% of collected premiums on healthcare.
In addition the government finds it cheaper (it is) to subsidize part of the premiums for those people with low income, than to pay for services at the ER as the avenue of last result for the uninsure.
However, you are right about the insurance companies, as they are today, being a ‘big death panel’ board in many cases. Why?
There are several reasons for this:
1)Insurance is a for profit institution, therefore
a.- it only makes money when the purchaser of their product (you and I) do not use their product. In other words, they can only make a profit on “care not delivered”.
Just think for a moment if Fed/Ex and UPS made their profits only on ‘packages not delivered’. Would you, or anyone else use their services?. Of course not; you’d have to be stupid to do it, right? but here we do it on health care delivery from an insurance system that could only make money by denying care.
Crazy, isn’t it?
2)Health Insurance company have a lot in common with ‘boiler room operations’, except that they have a certain aura of respectability in that they are legal, and boiler room operations are not.
3)The insurance industry finances the careers of many politicians.
Yes, I’m aware of these new regulations of the health insurance industry that require these companies to actually deliver the services that they promise their customers. It’s wonderful that the law now requires them to do what they should have been doing all along, but it doesn’t change the fact that their policies have killed countless people over the years, and all Americans are now forced to buy their substandard products under penalty of law.
For these reasons, I am less than thrilled with the Affordable Care Act, including the individual mandate. I agree with your points about why the insurance companies have routinely denied health care to those who need it over the years, and why our politician$ have backed these companies and denied the American public any rational health care system that would at least include some kind of public option.
If the Supreme Court strikes down this law or allows it to stand, I predict that the health care system in the USA will continue to be an utter disgrace, simply because a for-profit system like this will do whatever it takes to continue raking in billions in profit each year. The regulations are nothing to get excited about, because with the US government’s track record in enforcing regulations (see: SEC, FDA, EPA, MMS), I don’t think the CEOs running the insurance companies have anything to fear. They likely know this too.
So the author acknowledges the musket mandate and the individual mandate derive from diffent powers in the constitution so that’s kind of a big “never mind”. We’re left with what? The author’s belief that because the framers envisioned the government building canals that they would necessarily embrace forcing a person into private commerce? This is just a gas-bag commentary for god’s sake. One wonders if the author doesn’t always find constitutional imperatives perfectly in sync with his own specific values. What a coincidence.
I don’t want to have to purchase a new crap musket and new bad black powder from a nearly unregulated supplier every year for years to come, and then not be able to use the musket–note I still can only use the one not the many I’ve been forced to buy–reliably (because it’s crap) when it may in fact be necessary for my continued well being.
Get the analogy there Mr. Parry?
This mandate remains a tweak to a poll tax. Stop acting like the New York Times, and missing the obvious.
Since you missed this and it still may not be clear from what I wrote above because I was mostly noting the crap medical insurance offered by this private mandate: Look this isn’t like I have to purchase one musket once in my life, I’d have to repeatedly buy the same crap to be a citizen in good legal standing.
Don’t expect to get much fundraising success after that kind of post by you.
And learn something about hand tools in general, a good hand plane will last many lifetimes, as will a good hunting rifle.
Further, the law was only directed to certain men of fighting age, NOT every single American. They also implemented a draft, but only of men of a certain age.
It is a tragedy that health care costs for the uninsured are so expensive in this country, and that the level of care is often substandard. While President Obama was wrong to disregard the single payer plan out of hand, he was right to try so hard to solve a problem that has bankrupted so many families and been pulling down the American economy. Up to now, the free market has failed to deliver affordable health care to the public, and there is no reason to expect that left to its own devices it will ever do so in the future. This is one area where applying government leverage in the marketplace can make a real difference.
Unfortunately, the Supreme Court (and the Republican Congress) doesn’t have to worry about health care (they are already covered by generous plans), or doesn’t realize that the bill will almost assuredly bring down the costs for everyone (even those not using a particular option), or doesn’t care that 1 in 3 foreclosures are due to families saddled with unaffordable medical expenses, or- if Justice Scalia’s comments about not reading the full bill are representative- doesn’t even have the professional integrity to examine the documents before them- e.g., to rule fairly on the issue of severability. (Where would a claim of due process end up with that one?)
Those of us who have been wiped out financially and cannot see a viable financial future in our remaining years do care, even if we have no power to do anything about it.
Your logic is flawed…you assume that the passage of the Militia Act meant that the men had to “buy” the materials when in fact, there was no mandate to purchase products. By your own admission the act stated, they had “six months to â€œprovide 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.â€ He could have traded for these items, they could have been gifted to him, but most likely he already had those materials because back in those days, not to have these items was suicidal. And there is a huge difference between a new nation bracing for survival and a healthcare mandate, where we are forced to buy an expensive product from profit driven mega corporations. I think it’s back to drawing board for you on this one. Nice try though.
Right, except for the part about “provide himself.” One may provide themselves by purchase or by trade or by begging on the street, but it is still a mandate to provide. My favorite part is where the law specified that the ammunition had to fit the bore of the musket, which is an indication of just how much their world differed from the NRA’s conception of a lawless, violent place where everyone was armed to the teeth. In fact, the very idea that Congress would have to mandate the ownership of arms suggests that the chief problem with the Framers’ concept of national defense was that too many able-bodied males did NOT own a musket.
Nice try though.
That’s right Matt. Call a dis-ingenuous right wing fuck a dis-disgenuous right-wing fuck when one rears his ugly head. They know they don’t have the TRUTH on their side, and so they have to resort to mendacity in the hopes that no one calls them out on it.
Just to put an end to your argument, and/or to anyone’s argument that a ‘mandate’ is unconstitutional, let it be known that “Medicare” is a mandate and nobody that is looking forward to, and/or is presently receiving the benefits of it, would think it is unconstitutional.
Furthermore, if today the Supreme Court was to, the declare the mandate in the ‘Affordable Health Care Act’ unconstitutional, senior citizens will wake up tomorrow morning without the means by which they receive needed medical care, nor the ability to pay for it.
Do you understand what the consequences will be, even for you in the future or now if you are already a ‘medicare recipient, if the Court was to rule against the mandate?
Matt, be careful what you wish for because you might get it; and then what?
matt, my response was for saspin, and not you. Sorry.
Saspin says that assuming that the Militia Act meant they had to buy the materials was flawed logic. But just like for the musket mandate people now can rely on trading for the insurance money, or having someone else gift it to them. And just like the materials needed for the musket mandate it’s suicidal these days to be without health insurance. Nice try though.