Editore"s Note
Tilting at Windmills

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January 21, 2011

IF THE GOAL IS TO HONOR THE FOUNDING FATHERS.... For much of the contemporary right, there's a near-obsession with the nation's Founding Fathers. Conservatives' understanding of history is a little shakier than it should be, but the right seems convinced that their vision of government is identical to that of those who wrote the Constitution.

This is particularly true in the debate over health care reform, in which conservatives insist that the Founding Fathers never would have approved of the Affordable Care Act. It's an odd hypothetical -- those living in an 18th-century agrarian society with a modest population couldn't possibly imagine the needs of modern American society -- but the crux of the argument is that the individual mandate is at odds with our historical and legal traditions.

Americans history is already filled with examples to the contrary -- government-mandated purchases go back to the days of George Washington -- but Rick Ungar finds an especially interesting example. (thanks to reader C.G. for the tip)

In July of 1798, Congress passed -- and President John Adams signed -- "An Act for the Relief of Sick and Disabled Seamen." The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.

And when the Bill came to the desk of President John Adams for signature, I think it's safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.

Yes, in all likelihood, the Founding Fathers were aware of what the Founding Fathers considered constitutionally permissible.

Paul Waldman argues, persuasively, that this is little more than an interesting historical footnote, and that reform proponents should remember that "we can't decide questions of contemporary policy by trying to figure out what Jefferson, Adams, and Madison would say about them."

That's entirely right. Still, there's some entertainment value in knocking down one of the right's favorite arguments, and for Supreme Court justices who are equally obsessed with determining framers' intent, it's possible anecdotes like this one could carry some actual weight, whether they should or not.

What's more, it's not just Adams -- Thomas Jefferson also supported the identical 1798 proposal, which, any way you slice it, required private citizens to pay into a public health-care system, and included a "regulation against a form of inactivity."

By any sensible standard, one does not need obscure 18th-century anecdotes to know the individual mandate -- which was a Republican idea, anyway -- passes constitutional muster. But for those on the right who consider this original-intent concept paramount, we can add this to the list of things they've gotten terribly wrong.

Steve Benen 2:00 PM Permalink | Trackbacks | Comments (27)

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Comments

Evidence suggests that the Founding Fathers saw dueling as an acceptable way to settle arguments. . .

Posted by: DAY on January 21, 2011 at 2:04 PM | PERMALINK

It's not obsession, it's fetishization.

Posted by: cld on January 21, 2011 at 2:05 PM | PERMALINK

But how are you going to make this argument to people who believe that the 235-year-old words and intentions of the Founders should only be superceded by the 6000-year-old words and intentions of a band of nomadic misogynist desert-dwellers?


The right will hearken to any words but those of the current residents of the planet.

Posted by: cmac on January 21, 2011 at 2:13 PM | PERMALINK

I can't wait to see a male escort on 60 Minutes explaining how some Republican Congressman wanted him dressed like one of the Founding Fathers.

Posted by: SaintZak on January 21, 2011 at 2:22 PM | PERMALINK

SaintZak: Yeah, as republicans apply it, it's clear they can't tell the difference between CON-stitution and PRO-stitution.

Posted by: bignose on January 21, 2011 at 2:28 PM | PERMALINK

Obviously, the Founding Fathers were socialists. lol

Posted by: sue on January 21, 2011 at 2:34 PM | PERMALINK

Brilliant! Find some advertising genius and make it into a commercial with a longer one for the web. Run it everyday from now to August until people can quote it in their sleep. If the guy who opposes you has a megaphone aka Rush, Beck, et al get a loudspeakers.

Posted by: KurtRex1453 on January 21, 2011 at 2:39 PM | PERMALINK

Steve makes the remark that "one does not need obscure 18th-century anecdotes to know the individual mandate...passes constitutional muster." What worries me is that some number of these state cases challenging the individual mandate make it to the Supreme Court. It is entirely possible that this court would apply a political test to the case rather than a legal test and bye-bye mandate.

Posted by: Bob on January 21, 2011 at 2:41 PM | PERMALINK

Yes, but John Adams was one of those fancy Harvard (class of '55, i.e. 1755) graduates and a lawyer. He can hardly be supposed to have the good American common sense of, say, Sarah Palin.

Posted by: Stella Barbone on January 21, 2011 at 3:08 PM | PERMALINK

I'm just wondering what the constitutionally conservative view is on a standing army, and how that works with not touching the Pentagon budget.

Posted by: Lars on January 21, 2011 at 3:12 PM | PERMALINK

There's also the federal Longshoremen and Harbor Workers Act, which requires companies unloading ships to purchase what amounts to workers compensation insurance. It's a federal act, because the federal government has jurisdiction over all U.S. navigable waters. The Jones Act requires all vessel operators to carry insurance to compensate workers injured on the job.

Indeed, every employer in every state is required to carry workers compensation insurance, which essentially mandates purchasing policies from private insurers. Several states have their own funds as an option for employers, usually those who can't find private coverage, and a few have their own monopolistic funds. Most homeowner's policies include a rider covering casual workers not otherwise covered by employers, such as the kid who mows the lawn.

Posted by: Edward Furey on January 21, 2011 at 3:30 PM | PERMALINK

-I'm just wondering what the constitutionally conservative view is on a standing army, and how that works with not touching the Pentagon budget.
-

Kind of like how that whole funding of the Iraq fun beginning in 2003 worked. Guaranteed cash from those that thought it was the worst thing to pay for.

Posted by: Schnabel on January 21, 2011 at 3:31 PM | PERMALINK

I wonder if the Supreme Court will consider this statute when it considers the constitutionality of the individual mandate.

Posted by: Bruce K on January 21, 2011 at 3:37 PM | PERMALINK

...any way you slice it, required private citizens to pay into a public health-care system, and included a "regulation against a form of inactivity."

Slice it this way: the Act didn't apply to all private citizens, only to sailors. Therefore, anyone could opt out of the mandate by choosing a different profession. Just as anyone can opt out of mandatory auto insurance by choosing not to drive a car.

That's a fine point, and probably a finer point than today's Republicans would have made, had they been around to argue against it.

Posted by: Grumpy on January 21, 2011 at 3:37 PM | PERMALINK

Obviously this example of an American founding father signing what appears to be legislation authorizing an individual mandate is merely an example of libruls gaming the system. Garbage in, garbage out. etc. And did this legislation cover the "doc fix"?

Posted by: Bulworth on January 21, 2011 at 3:38 PM | PERMALINK

Bruce K: "I wonder if the Supreme Court will consider this statute when it considers the constitutionality of the individual mandate."

Is that how "originalists" operate? Do they consider acts of early Congresses to be a window into the Framers' intent?

Posted by: Grumpy on January 21, 2011 at 3:39 PM | PERMALINK

This 1798 Act was the foundation for the Public Health Service. Physicians and other health care professionals in the Public Health Service's Commissioned Corps have Naval ranks and uniforms because of the roots in marine hospitals.

Posted by: Rich on January 21, 2011 at 3:53 PM | PERMALINK

I'm just wondering what the constitutionally conservative view is on a standing army, and how that works with not touching the Pentagon budget.

Well, no appropriation lasts for more than 2 years, so it passes Constitutional muster, sadly...

Posted by: Todd for VT House on January 21, 2011 at 3:58 PM | PERMALINK

Yes, I'm sure the Founding Fathers would have wanted and expected U.S. citizens to slavishly follow the intent of people living 235 years earlier. That's why when they drew up the Constitution they based their document on their reverence for the popular political ideas of the mid-1500s.

Posted by: beejeez on January 21, 2011 at 4:34 PM | PERMALINK

And when the Bill came to the desk of President John Adams for signature, I think it's safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.

Of course, Adams also signed (and enforced) the Alien and Sedition Acts.

Posted by: martin on January 21, 2011 at 4:45 PM | PERMALINK

I wonder if it has occurred to conservatives that if they're right about Obamacare being unconstitutional, then Social Security privatization is also unconstitutional. After all, if you can't legally make people purchase health insurance, then how can you force them to adopt a mandatory savings program?

Posted by: bill3001 on January 21, 2011 at 7:01 PM | PERMALINK

"Of course, Adams also signed (and enforced) the Alien and Sedition Acts."

Yup. Maybe we've been interpreting the First Amendment wrong all these centuries.

Watch what you say!

Posted by: Grumpy on January 21, 2011 at 7:04 PM | PERMALINK

It is my personal opinion that if Louis Pasteur (who is credited with the concepts of vaccination and, of course, pasteurization) had been a contemporary of the founding fathers of the US, they all would have eagerly enacted some form of national health care -- particularly since all of them were personally affected by deaths of family members due to now treatable illnesses. Jefferson, a gentleman farmer who was particularly affected by the death of his first wife due to illness, would readily seen a national system of basic public health as a matter of overall security to a young republic.

Posted by: Foochy on January 21, 2011 at 10:27 PM | PERMALINK

It doesn't matter what Adams, Jefferson and the Fifth Congress thought.
The only true guide to the Founders' Original Intent is Antonin Scalia.

Posted by: Ron on January 21, 2011 at 11:58 PM | PERMALINK

I want to nominate bignose at 2:28PM for blogsnark of the week. =)

Posted by: tanstaafl on January 22, 2011 at 9:44 AM | PERMALINK

Look, I understand the squeaking wheel gets the oil. But no amount of oil changes the fact that there is something fundamentally wrong with the wheel and it needs to be repaired or replaced.

Sigh.

And I really tire of the modern conservative movement's decent into shrieking obscurity and shrilling stupidity. At some point the whole damn mess will collapse and honest, intelligent, and courageous people can move in and do the necessary repairs.

Oh, and once again Steve, you prove why you are a Blogging God and I am a lowly blogging peasant.

Bravo on this post. Bravo.

Posted by: Rook on January 22, 2011 at 11:07 AM | PERMALINK

Just to note that neither Adams nor Jefferson attended the Constitutional Convention, as they were in London and Paris respectively. And, as another poster pointed out, Adams signed the Alien and Sedition Acts which today would be regarded as a gross violation of the First Amendment.

That said, I think the federal health care law is pretty obviously constitutional; it's just that going by the acts of Adams and Jefferson may not be a particularly good way of getting to that conclusion, though it does play to the Tea Party's fetish regarding original intent.

Posted by: dsimon on January 23, 2011 at 2:31 PM | PERMALINK




 

 

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