Eh?! Our Founding Fathers mandated medical insurance! So Obamacare is constitutional after all!!

[DippyDem]

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 right, the father of our country had no difficulty imposing a health insurance mandate.

<snip> more interesting read at link http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable-care-act

Will the Freeperheads explode over this?

[gordianot]

1. They will miss the point.

[DippyDem]

3. Really?

In the same article there was a mandate for all able bodied men to buy firearms and also signed by George Washington.
Ahh ya right they will only zero in on this and ignore the medical mandate.

[neverforget]

15. I disagree. They will INTENTIONALLY miss the point.

[annabanana]

2. why those unamerican socialists.. stealing our freedums. . .n/t

[wandy]

4. Even before that. The phrase "provide for the common good" just about covers it....

The commitment to promote the general welfare of all persons, as opposed to protecting the interests of a narrow section or class of the population, encapsulates what is most unique about the United States of America--that it is the only modern nation-state republic founded on this principle.

My god, that from Lyndon LaRouche .
Lyndon LaRouche makes more sense than teabaggers?
Will wonders ever cease!

[elleng]

9. Right, the 'common good' very broad,

as is interstate commerce.

[wandy]

10. Very broad, as it was likely intended to be...

Other than 'provide for the common defense' basically taken to mean banding together and bashing other neighboring tribes; for what other reason than 'providing for the common good' do nation states exist?
In a feudal kingdom their is no need to provide the peasants with other than wepons, allowing them to 'bash' neighboring tribes.
Let them eat cake. All that matters is that we can subdue our enemies.
Sometimes I have my doubts, sometimes we sure don't act that way, but hopefully we are beyond that.

[notadmblnd]

5. I'm sure that they will be quick to point out that it was mandated for employers to provide

insurance for their employees, not a mandate for individuals to purchase insurance for themselves.

[yewberry]

6. They'd be wrong. There was an individual mandate applied to seamen

that required them to have insurance to cover hospital stays, as the employer-provided coverage didn't.

[Bandit]

11. They might, but if one were to go back to 1994

Clinton's Health Care Bill was to mandate business to provide insurance for all employees and Republicans were repelled by that notion so they came up with the individual mandate instead.. It was a main reason Clinton's bill was defeated.....It was the inspiration for the Health Insurance Bill Romney signed into law in Mass. One thing I have learned about Republicans over the last couple of decades is they don't really have any core values.. They will change on a dime if it suits them at the moment..

[SunsetDreams]

7. K&R and Bookmarked!

[Poll_Blind]

8. There's a reason this argument didn't come up from either side or the Justices during the hearing:

It's specious.

The only thing in that article that's genuinely germane to the situation is the 1792 statute requiring able-bodied men to purchase firearms. That's it.

That was never federally enforced.

Virginia v. Sebelius is specifically about whether individuals can be compelled to actively participate in interstate commerce when they might not have participated in it at all. I'm not even sure the presumption of whether healthcare of an uninsured person defacto translates into interstate commerce has been settled.

I think professor Elhauge is stretching the point into a generality to make his case to a public audience when such a thing would have been drummed out of a presentation to the Court.

PB

[Uncle Joe]

13. I wonder if Elhauge supports the Citizens United decision along the lines of this other

conservative professor that supports the mandate of the ACA?

http://www.democraticunderground.com/101499164

Conservative Scholar: Supreme Court Should Uphold Obamacare

"Yet another prominent conservative legal scholar has stepped forward to urge the Supreme Court to uphold health care reform as firmly within the court's precedents."

In a column published on The New Republic's website, Henry Paul Monaghan, a professor of constitutional law at Columbia Law School, applauded the Supreme Court's conservative justices for their aggressive questioning of Solicitor General Donald Verrilli during oral arguments three weeks ago, but went on to "submit that sustaining the mandate would not give rise to the justices' fears of boundless federal authority."

http://www.huffingtonpost.com/2012/04/16/supreme-court-health-care-henry-paul-monaghan_n_1429228.html#TID=17obfn30g8tgqi&TData=100020

In 1985, Monaghan wrote a widely read and cited essay called "Our Perfect Constitution" that was critical of activist judges who used the document to justify expansions of individual rights. In 1986, he testified before the Senate Judiciary Committee on behalf of Robert Bork, the arch conservative that former President Reagan tried (and failed) to place on the Court. In the fall of 2010, Monaghan defended the Court's decision in the Citizens United case, which overturned part of the McCain-Feingold campaign law.

If he does, I don't understand how they square their logic, if corporations' unlimited spending on issues are a protected First Amendment Right based on the belief that "money is speech," how can they force/mandate the people to financially support a private for profit industry diametrically opposed to those same peoples' best interests.

No doubt the private for profit "health" insurance industry will use some of their profits from these mandated premiums to contribute to sympathetic political candidates, or lobby/bribe future Congresses to weaken the law's good points that protect the people and create terms more favorable to the for profit "health" insurance industry.

It seems to me if you're operating under the belief that "money is speech" compelling the people to financially support a private for profit industry opposed to their best interests abridges their freedom of speech.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

UJ

[Poll_Blind]

17. Ha! Interesting. Thank you for that thought to chew on. I never thought about the...

..."speech" angle or how others might view it or tie everything in, if it can be tied in...like some "grand unified theory" of a political stance.

PB

[Uncle Joe]

18. Combined with the Citizens United Decision

this dynamic should the mandate stand definitely promotes the further advancement of corporate supremacy over the people.

Corporations have 1st Amendment Rights and the people don't, it's all downhill from there.

That's why I'm curious as to whether the conservative professor on this OP also supported Citizens United.

If he did that would be two professors coming out within days apart supporting freedom of speech for corporations but not the people.

UJ

[girl gone mad]

20. There was no requirement to purchase firearms.

The men were only required to procure firearms, which means they could have been handed down or even borrowed.

[robinlynne]

12. woah!!!!!!

[progressoid]

14. Sooo...

would you also then support a law requiring all Americans to buy a gun?

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.

[cherokeeprogressive]

16. Well, it would seem there IS precedent for THAT.

How many people will twist into pretzel shapes in arguing FOR the healthcare precedent and AGAINST the firearms purchase precedent?

[Luminous Animal]

19. It would be nice if the author had provided a source for his assertions

He did not. And I am not saying he is wrong but really, source please. There's no footnotes. No links. Nothing.