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Tuesday, June 28, 2011

Constitutional Tradition and the Individual Mandate

In my first post on the New Hampshire Republican Presidential Debate I took issue with claims raised by several of the candidates related to immigration and eligibility for office that could not be squared with constitutional text. More broadly, I questioned whether the “Imaginary Constitution” trope invoked by Ron Paul to critique liberal, activist judges ten years ago might not apply more tellingly to the constitutional visions and fantasies that underlay the candidates spoken and coded appeals to Tea Party voters watching the proceedings at their St. Anselm debate, where the Constitution took pride of place as the touchstone for assessing the orthodoxy of proposed answers to contemporary political problems. Richard Stengel’s thoughtful cover story in this week’s Time Magazine asks whether the Constitution still matters, and then suggests that as a nation “We the Parsers” obsessively query the Constitution for answers to particularized questions that the framers of the instrument never intended to answer. For Stengel, then, the Constitution matters, but not because it provides all the substantive answers. Stengel is correct to suggest a degree of clause-bound constitutional obsessiveness among the politically engaged population, and that is one theme I will revisit in passing today. But there are at least two other levels besides text on which the Constitution may well matter even more to the people out of doors, and those are symbolism and myth -- the principal subject of an upcoming post -- and constitutional tradition -- the principal focus of my post today. To elucidate the importance of constitutional tradition in contemporary popular constitutional politics, and its relation to constitutional text and constitutional myth, I suggest turning once again to the New Hampshire debates.

No perceived monstrosity of the Obama-state came in for more withering denunciation at St. Anselm than Obama-Care, and in particular the so-called individual mandate upon which some say the program depends (in the sense that universal access to bad insurance requires enforced universal participation in the bad insurance delivery mechanism, since bad insurance can’t very well be expected to sell itself.) The seven Republican candidates were in firm agreement that a federally enforced requirement to purchase insurance was wrongheaded. Some called it illegal, others unconstitutional. None suggested it was constitutionally permissible. There were very few claims that a federal individual mandate violated concrete constitutional guarantees apart from the nebulous Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) Even that cryptic provision lurked ethereally about the proceedings, seldom invoked by name, never enlisted directly into conversation, and never probed as to the telling change from “not expressly delegated” in parallel language in the Articles of Confederation to the sparser “not delegated” in Amendment Ten. (Debates in the First Congress on the proposed Tenth Amendment, by the way, make crystal clear that this alteration was deliberate, pointed, and aimed at protecting an expansive interpretation of federal power.) If no candidate explained how any clause of the Constitution including the Tenth Amendment enjoined the federal government from enforcing a mandate against individual persons, for principled libertarians this is hardly the point, since it is the absence a specific grant of authority to the federal government, not the absence of a particular prohibition against federal action, that should be outcome-determinative in assessing the constitutional validity of assertions of federal power. Hamilton in his Report of the Bank and Marshall in McColloch v. Maryland disagreed even as they articulated ambitious visions of a powerful federal government under the Constitution, but in Jeffersonian eyes they were wrong then and in libertarian eyes they continue wrong today. Some libertarians argue axiomatically that the federal government is one of limited, delegated authority, others reject the teachings of Oliver Wendell Holmes that the Tenth Amendment projects no invisible radiations annulling federal authority, but modern day states righters and individualists agree that unless a power to command individuals is expressly granted Congress in Article I Section 8 or elsewhere in the Constitutional text, it does not exist, New Deal Chief Justice Stone’s characterization of the Tenth Amendment as an insignificant “truism” notwithstanding.

The debate on broad construction and implied powers is as old as the Republic, and the precise question of whether a federal mandate to purchase insurance is compatible with the Constitution is as old as the New Deal. In Steward Machine and Helvering decided the same day in 1937, the Supreme Court upheld the Unemployment Insurance and Old Age Pension components of the Social Security Act, rejecting challenges under the Tenth Amendment and the Taxing and Spending Clauses that would have been successful not long before. So Supreme Court doctrine on the Tenth Amendment and the Taxing Powers (to say nothing of the Commerce Power), unless changed by subsequent decision, points towards the constitutionality of Obama Care including the lynchpin individual mandate. Of course for many Obama Care skeptics on the libertarian right, existing case law is also a symptom of the larger problem associated with the vestiges of the New Deal state these critics wish to sweep away. For present purposes, what intrigues me about increasing popular constitutional skepticism respecting the New Deal is not so much a popular revulsion against broad construction of the Taxing, Spending and Commerce Powers, or populist embrace of a reanimated Tenth Amendment that has teeth its designers never intended it to grow, but rather a firm faith that libertarianism rests at the heart of American soul and at the center of the American constitutional compact even when it cannot be proved by reference to constitutional text. Surely, the articulated argument and the unspoken assumption of Obama-care-skeptics hold, the federal government cannot make We the People buy things the government wishes us to buy, because that is not compatible with the American theory of limited governance. It is just not the sort of thing the Founding Fathers would have tolerated.

One of many ironies in the lived national experience that is frequently so much richer and more complex than nostalgic individualists assume is that the Founding Fathers actually endorsed and indeed required the mandatory acquisition of at least one item freighted with considerable ideological weight for libertarians and statists alike, namely guns. Those subject to the Federal Militia Act of 1792 (white men aged 18-45 and not otherwise exempted) were required to acquire a musket or rifle of designated specification for militia use, and for at least three decades, the federal government under both Federalist and Republican administrations attempted to ensure state enforcement of the federal requirement (rather presciently violating Justice Scalia’s anti-commandeering principle in the process). The Federal Government conducted Militia Censuses in 1802, 1806, and decennially from 1810, under which states adjutants general were required to send state officials door to door to make lists of militia eligible persons and ensure that they had come into possession of weapons compliant with the 1792 Act. The Jefferson Administration pushed the censuses hard, and made federal money available to the states to distribute to persons for the purpose of purchasing guns compliant with (and only guns compliant with) the terms of the Act. Now, I am neither a non-interpretivist, or an original intent originalist, or an original public meaning originalist. I do not have a general answer to the question of whether, why, and how founding era practice is relevant to constitutional interpretation today, except to suggest that if founding era understanding and practice is relevant, those who depend on the interpretive power of founding era understanding and practice are under a duty to accurately represent founding era understanding and practice, and to acknowledge that those understandings and practices seldom reflected unambiguous consensus. But while I personally lack a general theory of originalism, I think I am correct in suspecting that most libertarians and all seven candidates debating at New Hampshire would insist that founding era practice is profoundly relevant, at least in so far as it is consistent with contemporary libertarian impulses. That being said, back to my caveat about the duty on the part of those cleaving to originalist methods to accurately represent founding era practice and understanding for purposes of elucidating constitutional meaning: When it comes to individual mandates and founding era assumptions, as a factual matter, this much at least is true: Washington signed and Jefferson and Madison enforced a federal Act that required people to buy a particular item. And this, like a great many things regarding the constitutional history of the United States from the founding and early national periods is very difficult to square with Ron Paul’s 2008 claim that “The Constitution was written explicitly for one purpose – to restrain the federal government.” One might make that claim (with only partial accuracy, it turns out) about the Bill of Rights, but the claim is clearly frivolous respecting the original seven articles written in 1787-88 or the Reconstruction Amendments written in 1865-69. These were written not to restrain the federal government, but in the case of Articles I-VII to create a powerful national government were previously there had been none and in the case of Amendments XIII-XV to empower that government to crush the remnants of the slaveocracy that had imperiled the Union. The powerful appeal of Paul’s facially incorrect assertion that the framers at Philadelphia intended to restrain the federal government is the subject of my upcoming post on constitutional myth and constitutional covenant.

Posted by Bill Merkel on June 28, 2011 at 04:08 PM in Constitutional thoughts, Culture, Current Affairs, Law and Politics | Permalink


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Thanks for your thoughtful comment Lance. I am anything but an intent-focused originalist, so I am agreed that it would be silly to argue that the mandate is constiutional because the framers wanted the good people of their day to buy militia weapons, and that by analogy, they would want us to buy health insurance today. In fact, I can think of few criteria less relevant to deciding pressing questions of public policy today than asking what would the framers do if they were here. And if the only basis for an argument that a particular policy option should be deemed off limits for constiutional reasons today is the claim that the framers would not choose that option if they walked among us in the here and now, I firmly believe that the question at hand is sub-constiutional and hence purely political. My point was not to ask what would the framers do if they were here today, but rather to query why do people who do not know very much about the framers insist that the framers' vision should be outcome determinitive. You are also right that a mandate to buy militia weapons and a mandate to buy health insurance are not entirely analogous because the power granted in Article I Sec. 8 cl. 15 to "provide for organizing, arming, and disciplining" the Militia directly embraces the mandate to buy guns in a way the Commerce Power does not (without further interpretation) answer the question of whether farmer Wickard's decision not buy wheat on the market but grow it at home or my longstanding decision when I was younger and poorer not to buy wretched health insurance from horrid companies is subject to Congressional regulation. But those questions were answered some 75 years ago by the late New Deal judiciary which established that Congress could do virtually anything under the Commerce Clause. You and I probably agree also that revisiting those Supreme Court decisisions is one of the principal objectives of those opposed to the Obama Care mandate. We shall see what happens. Certainly Wednesday's Sixth Circuit decision will not provide the last word on the subject. Anyway, I had a useful discussion with a few former students the other day on Facebook related to the power to organize the militia as the basis of a specific Congressional authority to require purchasing guns. I wish the instigator of that conversation had chosen this medium instead so we might have rached a larger audience. But to sum up, my argument is not that we are obligated to buy insurance because that's what the framers wanted, but rather that those who argue we are not obligated to buy insurance because being forced into buying insurance is not what the framers would have wanted are probably making what tradespeople in this racket call "an insufficiently theorized argument." Happy Canada Day. Causes me to reflect in my anti-originalist ways that if there had been no American Revolution then 40,000 people would not have been killed, 100,000 would have been spared excile, and slavery would have ended with the Great Reform Acts of 1833. Peace.

Posted by: Bill Merkel | Jul 1, 2011 9:18:37 AM

While you can have fun at the expense of tea partiers by pointing to the Militia Acts, I am not sure if that is the strongest analytical point supporting the individual mandate from an 'originalist' standpoint.

An easy come back is a matter of distinction. Congress clearly had the authority to 1) Call up and form a militia (Art. I, Section 8) and 2) regulate what the militia would use, among other things. From this authority, there is a clear rationale that would allow Congress to compel militia members to purchase an object in connection with their militia service.

I am not generally persuaded by the argument that this is a clear 'framer's intent' justification for an individual mandate to purchase health insurance.

I think a more sound argument (though this wasn't the topic of this post) is that the distinction between a decision and non-decision with respect to commerce is not that stark. Whereas, the decision to buy or to abstain impacts commerce either way. So, the mandate should be evaluated on contemporary Commerce Clause principles (or Originalist principles) as opposed to a new standard that judges regulation of 'non-activity' in a different light than activity.

Posted by: Lance | Jul 1, 2011 8:20:56 AM

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