A: Nothing at all!
But that hasn’t stopped some progressives from trying to make the case that America’s Founders would have no problem with requiring Americans to buy health insurance as a condition of citizenship.
Michael Tomasky at the Guardian of London posts on a report by a third-year Seton Hall Law School student finding precedent for Obamacare’s “individual mandate” in the Second Militia Act of 1792. The law required:
[E]ach and every free able-bodied white male citizen of the respective States . . . shall severally and respectively be enrolled in the militia . . . .provid[ing] himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein . . . and shall appear so armed, accoutred and provided, when called out to exercise or into service.
Although Tomasky treats this as something novel, in fact Ian Millhiser at Think Progress floated the idea way back in March. (And, as it turns out, the post to which Tomasky links dates from July.)
But Tomasky thinks he’s really onto something here:
I would call that precedent. It lasted more than a century, and George Washington himself signed it into law.
That won’t matter to Scalia-Thomas-Roberts-Alito, of course, and maybe not to Kennedy. I suppose we’ll find out.
I suppose we will, too, and I suspect the justices will dismiss this particular argument in fairly short order.
(Tomasky goes on to say, parenthetically: “Meanwhile, on the healthcare topic, if you’re curious, Google ‘health care and severability.’ That’s a word you might want to learn, and something we might well be discussing in the coming weeks.” Heartland’s own Ben Domenech had him beat by a couple of months.)
When the Think Progress post on the Militia Act appeared, I remarked elsewhere it may have been “the stupidest thing I’ve read about the ‘individual mandate’”:
What does it say about progressives…that a law enacted when the United States was young and in constant danger from foreign enemies would be cited as precedent for mandated health insurance? It almost reads like a parody of progressivism, with its slipshod conflation of national defense with the welfare state. I’m surprised we haven’t heard that health care reform should be treated as “the moral equivalent of war.”
The Heritage Foundation also made quick work of the Think Progress post:
The greatest difference between the health care bill and the Second Militia Act is constitutionality. There is solid constitutional basis for the Second Militia Act: Article I, section 8, clause 16 states that Congress has the power “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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Articulating a list of goods required for militia service is certainly within the bounds of this clause. Indeed, Federalist 29 emphasizes that such regulation of the militia is part of “superintending the common defense, and of watching over the internal peace of the Confederacy.”
In contrast to the Second Militia Act, the health care legislation lacks any constitutional basis or legal precedent to support its requirement that every living person in America purchase health care insurance.
But since, as Tomasky emphasizes, George Washington himself signed the Militia Act, let’s give Washington the last word on the subject of the Constitution and its usurpation.
