Sen­a­tor Orrin Hatch (R-​​UT) called the indi­vid­ual man­date “unprecedented”.

The Supreme Court is cur­rently delib­er­at­ing on the con­sti­tu­tion­al­ity of the Patient Pro­tec­tion and Afford­able Care Act’s “indi­vid­ual man­date”, which requires all Amer­i­cans to pur­chase med­ical insurance.

It has been pointed out by oppo­nents that the indi­vid­ual man­date is an unprece­dented require­ment to engage in com­merce. The Con­gres­sional Research Ser­vice, for exam­ple, observed that “it is a novel issue whether Con­gress may use the clause to require an indi­vid­ual to pur­chase a good or a service.”

The Cato Insti­tute came to a sim­i­lar con­clu­sion, that “[f]inding the man­date con­sti­tu­tional would be the first inter­pre­ta­tion of the Com­merce Clause to per­mit the reg­u­la­tion of inac­tiv­ity — in effect requir­ing an indi­vid­ual to engage in an eco­nomic transaction.”

Yet it seems that, from an exam­i­na­tion of his­tory, they are incorrect.

Con­gress, through the Sec­ond Mili­tia Act of 1792, required

That each and every free able-​​bodied white male cit­i­zen of the respec­tive States, res­i­dent therein, who is or shall be of age of eigh­teen years, and under the age of forty-​​five years … shall … 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; or with a good rifle, knap­sack, shot-​​pouch, and powder-​​horn, twenty balls suited to the bore of his rifle, and a quar­ter of a pound of powder.

This is not only a require­ment to engage in com­merce; it’s a very spe­cific shop­ping list, for items almost cer­tainly to have been obtained through private-​​sector com­merce. Clearly, a require­ment to engage in com­merce isn’t unprece­dented. And not only does it have a prece­dent, it was signed into law by Pres­i­dent George Wash­ing­ton. That is, it was signed into law by one of our “Found­ing Fathers”, the group to whom Con­sti­tu­tional Orig­i­nal­ists claim to hew.

This obser­va­tion has begun to gain trac­tion. A few con­ser­v­a­tives have tried to counter by say­ing “yeah, but that was dif­fer­ent”. Dif­fer­ent how?

Some sug­gest that it’s dif­fer­ent because the Mili­tia Act stip­u­lates no penal­ties for vio­lat­ing the law. The impli­ca­tion here is that the indi­vid­ual man­date is accept­able, but the penalty is not. Of course, there’s not much point in hav­ing a law that isn’t enforce­able; clearly Con­gress expected the Exec­u­tive to take the steps nec­es­sary to ensure that the law was followed.

Oth­ers point to the Constitution’s mili­tia clauses in Arti­cle I:

To pro­vide for orga­niz­ing, arm­ing, and dis­ci­plin­ing, the Mili­tia, and for gov­ern­ing such Part of them as may be employed in the Ser­vice of the United States

as the jus­ti­fi­ca­tion for forc­ing cit­i­zens to buy weaponry. But the mili­tia clause pro­vides for arm­ing the cit­i­zens, not for forc­ing the cit­i­zens to arm them­selves. Con­gress could have (and per­haps should have) sup­plied “every free able-​​bodied white male cit­i­zen” with the goods in the shop­ping list. Instead, they man­dated that the cit­i­zens engage in private-​​sector com­merce, pur­chas­ing the goods.

Yet, there they are, argu­ing that this applies only to the mili­tia. Surely the fed­eral gov­ern­ment couldn’t order peo­ple to buy med­ical insurance.

Or could they?

Another of the Found­ing Fathers, Pres­i­dent John Adams, signed into law an act for the relief of sick and dis­abled sea­men. In that law, 20 cents per sea­man per month was required to be paid to the fed­eral gov­ern­ment in order to cover “sick or dis­abled sea­men”, and to build hos­pi­tals to treat them. Employ­ers could opt to pay for it them­selves, or they could deduct the 20 cents per month from the seamen’s paychecks.

Nei­ther the Mili­tia nor Sea­men Acts were con­sid­ered uncon­sti­tu­tional, either at the time or in the cen­turies since. It would seem, then, that health­care is under the juris­dic­tion of the fed­eral gov­ern­ment, and so is a man­date to engage in private-​​sector commerce.

Not that I expect Jus­tice Scalia to actu­ally care about that.

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