More Retrospective Originalism: “If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?”

April 13th, 2012

I previously blogged about Akhil Amar’s argument that because the United States under the presidency of George Washingotn imposed a mandate on the militia, it must be okay with us.

Einer Elhauge made a similar point:

 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.

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. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

Not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional. Moreover, no one thought these past purchase mandates were problematic enough to challenge legally.

Randy Barnett replies to these well-worn points (I’ve seen these arguments dozens of times over the last two nauseating years).

My point, more broadly, is about what I call retrospective originalism.  It doesn’t look to what words meant, or what the enactors intent was, but rather to the fact that  if the framers were comfortable with it, it must be good. Here is how I describe this concept in my forthcoming review of Adam Winkler’s Gunfight in the Texas Law Review:

Second, the history of early gun laws can be used as evidence of what the framers of the Second Amendment were comfortable with.  That is, examples of the founding generation placing limitations on the right to keep and bear arms suggest that this is how the Second Amendment was meant to operate.  Or, opposition to such laws indicates that those laws were not compatible with the Second Amendment.  In other words, if it was good enough for James Madison, it is good enough for us! I call this approach “retrospective originalism.”

This method must be distinguished from the original-expected-application blend of originalism, which looks to how the framers would expect the Constitution to be applied to modern issues[1]—such as how the Fourth Amendment would apply to a device that can measure heat signatures inside a home.[2]  Retrospective originalism, in contrast, uses the practices of the Founding era as evidence of how the provisions were intended to operate back then.  For example, Winkler cites to many of the laws passed in the Colonial era aimed at promoting gun safety as evidence that the Framers were comfortable with strict gun control laws.[3]  These ordinances—many of which were cited in Justice Breyer’s dissent in Heller[4]—are illustrations that “gun possession . . . balanced with gun safety laws was [an idea] that the founders endorsed.”[5]

So if George Washington did it, it must be good.

Plus Elhauge made a common mistake–John Adams was not a Framer of the Constitution. He was chilling in France when it was written and ratified.

That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another *framer*, President John Adams.

A correction was posted:

Correction: This article originally identified John Adams as a framer. It should have identified him as a founder, since he was not at the constitutional convention. We regret the error.

Elhauge is in good company. Justice Breyer made the same error:

“I can say what I think, I think we are following an intention by people who wrote this document [the Constitution], Madison, Adams, Washington….”