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Tilting at Windmills

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February 2, 2011

THE IRONY OF THE SOUTH DAKOTA MANDATE.... Several lawmakers in South Dakota, hoping to make an awkward point about health care, have proposed requiring adults in the state to purchase a firearm after turning 21. They don't expect it to pass, but they're hoping to demonstrate how ridiculous they think it is to have officials require the public to purchase things.

To hear these conservatives put it, the notion of an individual mandate is at odds with the American system. The irony, reader C.E. reminded me, is that Congress passed -- and George Washington supported -- a measure in 1792 that required all men eligible for militia service to have a firearm and ammunition, even if they had to buy them, and even if they don't want them. (It came six years before John Adams and Thomas Jefferson supported legislation that required private citizens to pay into a public health-care system.)

I'm going to go out on a limb and say that, in all likelihood, the Founding Fathers were aware of what the Founding Fathers considered constitutionally permissible -- and that South Dakota Republicans probably didn't think their little stunt all the way through.

Jack Balkin explained in a very good piece that, towards the end of the 18th century, the "requirement to join the militia (and purchase arms for the defense of the state) was an aspect of civic republicanism -- the political idea that citizens had a duty to work toward the public good and make sacrifices on behalf of their fellow citizens and the republic." There's clearly an aspect to this in the health care debate, too.

What is lost in the debate over the individual mandate is that the point of the individual mandate is also civic republican in nature. It requires citizens to make a far less significant but also public-spirited sacrifice on behalf of other Americans who cannot afford health insurance. Individuals must join health insurance risk pools to make health care affordable for more of their fellow citizens. This is a very modest request that individuals not be entirely selfish and that they contribute to the public good in a small way by helping to make health care accessible and affordable for all Americans. Indeed, under the terms of the Affordable Care Act, one doesn't even have to purchase insurance; one can simply pay a small tax instead. And one doesn't have to pay at all if one is too poor to do so or has a religious objection.

The notion that being asked to either buy health insurance and make health care accessible for one's fellow citizens -- or to pay a small tax -- is a form of tyranny akin to George III's regime is simply bizarre: it shows how perverted and twisted public discourse has become in the United States.

Steve Benen 11:25 AM Permalink | Trackbacks | Comments (31)

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As I pointed out in another thread, at least some of the Founding Fathers considered the Alien and Sedition Acts constitutionally permissible. And hiring congressional chaplins. And the states taxing churches, etc.

We fall into the rightwing tea party trap when we start treating the Founding Fathers as inter-changable modular units who all spoke with one voice.

And the SD Repubs are asses.

Posted by: martin on February 2, 2011 at 11:39 AM | PERMALINK

I think thats a nice point Balkin is making but its not exactly right, either. Citizens are not being asked to "pay a small republican price" to help out other citizens. Citizens are being required to pay into a common fund so that when they draw out their costs are being shared with everyone else--that is: citizens are being permitted to allow other citizens to bear their health care costs. Just like when I pay taxes I am not just paying for my neighbor's military protection but actually being allowed to co-share in the costs of my own military protection. You don't get to opt out of paying taxes as a citizen because you claim you don't want the public roads, water, and military protection. Similarly, each individual requires/has required/will require health care coverage at some point. Frankly, I think the government is being gracious in allowing us a mechanism to pool our costs. If we'd marketed the plan as "you are fucking lucky to be allowed to cost share with us" it would have gone over differently.


Posted by: aimai on February 2, 2011 at 11:44 AM | PERMALINK

One of the biggest misnomers in this madness is the Tea Party's refusal to account for our founding "fathers" and their efforts to make a viable nation:

George, John A., Thomas, Alexander, John J., and all the rest were FEDERALISTS!

They believed in national authority, and created a most genius document that forced competing institutions to weld power. Now these neophytes at life are telling us everything is unconstitutional.

What cretins these newly elected Republicans,both federally and state elected, are showing themselves to be! -Kevo

Posted by: kevo on February 2, 2011 at 11:50 AM | PERMALINK

yeah, The TeaBaggers want their personal liberty from the Government forcing them to buy health insurance, but they are fine forcing their fellow citizens buy a gun, something that many citizens find extremely dangerous in lots of ways and just plain stupid. So when the mandated gun goes off accidentally, hitting their newborn son in the head, at least they won't have been forced to have mandated insurance to treat the kid....... no....they'll rely on THE GOVERNMENT to pay the hospital costs...and raise taxes to cover it.
I don't really know how stupid the Republican Party is going to get, but mandating gun ownership is ....well, really really far out on the stupid limb.

Posted by: T2 on February 2, 2011 at 11:52 AM | PERMALINK

Great lets stop paying subsidies for big oil, im not pro-oil.

Lets stop paying for farmer to grow nothing.

Lets stop paying for equipment and bombs made by the MIC

Lets stop bailing out wall street.

Posted by: Kill Bill on February 2, 2011 at 11:52 AM | PERMALINK

@kevo, I think Thomas Jefferson would have had some very strong words for you if you had called him a Federalist to his face.

I also agree with martin that the founding fathers didn't have the same ideas on constitutional interpretation that we have now.

Posted by: Alan on February 2, 2011 at 11:54 AM | PERMALINK

I'm afraid that the right might have us on George Washington's Militia Act. It's my understanding that the states had the power to exclude anybody they wanted who would have been subject to the Act. If anybody has more info, a clarification, or a rebuttal to that fact, then I'd love to hear it. But I suspect that the right would drop their lawsuits if the health care law was modified so that states could exempt their citizens from the mandate, as I believe, the Militia Act allowed them to do.

In short, given the ability for states to exempt their citizens from it, I don't think that the Militia Act is a great example.

That said, there are lots of examples of the federal government "regulating inactivity" (including this one), which is the issue that the Florida judge ruled against by saying falsely asserting that it's never happened before.

Posted by: Chris on February 2, 2011 at 11:56 AM | PERMALINK

The constitution is a wonderful document but it's not handed down from god as the last word on all human activity. The doc was written over 200 years ago. The country has changed in ways that were unimaginable to the people who wrote it. I'm certain of one thing and that is that they would have wanted us to use common sense. And if someone thinks the system of health care in this country made any sense for anyone other than insurance companys than they're batshit crazy.

Posted by: Gandalf on February 2, 2011 at 12:08 PM | PERMALINK

I wish my fellow liberals would check the Constitution. Article I, Section 8 gives Congress authority over the arming of the militia, so it's an easy step to requiring the militia to arm themselves. Doesn't relate to the commerce clause at all.

Posted by: Bill Harshaw on February 2, 2011 at 12:14 PM | PERMALINK

Can I get the Joe Wilson "You Lie" AR-15 if I move to South Dakota? I can still do my hunting at Safeway, right?

Posted by: Trollop on February 2, 2011 at 12:18 PM | PERMALINK

South Dakota's cute little firearms "mandate" is cute, but pointless.

First of all, to the extent that it makes the failure to purchase a firearm unlawful - which isn't clear from the reports - it would not resemble the ACA, which allows people to choose between purchasing insurance or pay an extra tax. In that regard, the ACA's mandate is a lot like any other run-of-the-mill tax credit or tax adjustment.

Second, South Dakota, under its general police powers, can pass laws which the federal government arguably could not pass under its limited, enumerated powers. Any act of the U.S. Congress must be necessary and proper to effect its taxing power, its power to regulate interstate commerce, or some other enumerated power (which is why we're having the current debate over the mandate in the first place).

For purposes of the current debate, ironically South Dakota can pass virtually any law that isn't prohibited by the U.S. Constitution or legitimately preempted by Congress. If it wants to make people eat cornflakes every morning, there's nothing preventing the South Dakota legislature from doing that. There's also nothing preventing South Dakota from charging a 100% income tax if it wanted to. The only thing that stops it from passing such laws is the expected resistance of the electorate.

So, ironically, the proposed South Dakota law shows just how much power a state government has should it choose to wield it. Indeed, the very irony of the GOP preference for state control of insurance matters is that states have FAR more coercive power than the federal government. I'm not sure that's the lesson conservatives thought they were getting across when promoting snarky, unserious legislation like the South Dakota firearms "mandate."

Posted by: JohnC on February 2, 2011 at 12:18 PM | PERMALINK

Even if the SD bill is a stunt, we need to stop bashing the poor defenseless gun owners and weapons makers. EVERYONE needs a gun, it will make certain society becomes very polite, just like Tombstone was about the time of the OK Corral. Of course, we will need rules for gun fights, instead of random gun battles in bars, the myriads of horse corrals in local neighborhoods, or street corners like we have now. I suggest bringing back dueling but putting them on TV. Insult someone, get challenged to a duel, go on local TV. I envision the end product being sort of like the Jerry Springer Show but with guns.

Moreover, to paraphrase Shaw: guns are necessary to the health of a community they keep order. Or rather Cops use them to control crime which is the same way of putting it. Millions of people go to gun ranges and shoot targets so they can reduce stress which they cannot otherwise handle.  Guns enable the army to invade countries in the dead of night, a thing no sane person would do at ten in the morning.  IS IT the weapon makers' fault that this inestimable gift, the gift of killing, is deplorably abused by less than 1% of the population? I think not. 

Just remember as the Beatles once said, "Happiness is a warm gun."

Posted by: KurtRex1453 on February 2, 2011 at 12:19 PM | PERMALINK

For those concerned about the poor in South Dakota, I am led to understand that the poor can, in case of emergency, report to the public armory where they will be given, at taxpayer expense, a Saturday-Night special with a single bullet a la Barney Fife.

If they fire that bullet, they can go BACK to the armory and get another, as many times as necessary, until either they subdue the threat to their safety or they are killed by the assailant.

Providing a more sturdy firearm and a box of ammo is strictly for those with private gun insurance policies, usually available to full-time staff of South Dakota employers.

Posted by: toowearyforoutrage on February 2, 2011 at 12:20 PM | PERMALINK

I am in partial agreement with Gandalf...

The constitution is a wonderful document but it's not handed down from god as the last word on all human activity.

But, the Constitution is currently interpreted by God and Antonio is now awaiting instructions from the Koch brothers on how to rule.

Posted by: SadOldVet on February 2, 2011 at 12:25 PM | PERMALINK

Steve Benen quoted Jack Balkin: "... the point of the individual mandate is also civic republican in nature."

No, the point of the individual mandate is corporate Republican in nature.

The ONLY reason for the individual mandate is to entrench the for-profit insurance corporations as the foundation of the US health care system, in return for their acquiescence to the modest regulations of their most heinous practices established by the ACA -- regulations which they are already aggressively working to overturn, undermine and thwart.

Nothing makes a billionaire insurance company CEO happier than to see people engaged in inane discussions and frivolous lawsuits about the Constitutionality of the individual mandate, instead of engaging in substantive discussions about how to implement nonprofit, single-payer "Medicare For All" health insurance under open, accountable, efficient public administration.

Posted by: SecularAnimist on February 2, 2011 at 12:29 PM | PERMALINK

This is just a guess, but perhaps some Americans feel that the mandate was the straw that broke the camel's back in terms of making sacrifices for their fellow Americans. Perhaps if the US Government dialed back other assistance/entitlement programs, then more Americans would have been more open to the idea of a mandate.

It may come as a surprise to you, but there's a lot of hardworking, financially responsible Americans out there that are sick and tired of giving others a so-called "free ride" via entitlement programs.

Just sayin...

Posted by: Concerned on February 2, 2011 at 12:38 PM | PERMALINK

SecularAnimist, your comment makes so much sense, I suspect you are a godless commie. Or at least a pointy headed intellectual.

As I wrote the other day, this is not about the Constitution, it is about Corporation V People. And Corp. is winning. . .

Posted by: DAY on February 2, 2011 at 12:42 PM | PERMALINK

These jerks in South Dakota have openned an interesting and illucidating can of worms.

Not only can the federal government mandate the purchase of weapons, it can tell you who to use them on and it also can force you to participate in warfare when it supplies the weapons.

Those of us old enough to remember when the 'draft' was not just an uncomfortable movement of cold air, recall that NO ONE ON THE RIGHT questioned the constitutionality of a governmental system that coerced young men to kill other young men, even when the need for the killing was open to serious doubt.(Yes I know about CO status, but if I did not have a 'conscientious objection' to killing Nazis as well as the Viet Cong, I could not qualify.) But, some did question that power in the WW I era, and a conservative dominated Supreme Court ruled it was OK because Congress had the power to "raise and support Armies".* (Notice please the words do not explicitly say Congress has the power to force persons unwilling to do so to perform military service; to kill and be killed.)

Now it seems to me that being forced to risk one's life AND forced to end the lives of other human beings, or go to prison, is a bit more onerous -it's WAY MORE ONEROUS!- than being forced to provide for one's health care in a way that insures others do not have to do so,or pay a modest fee. But none on the right question that federal governmental power.

Responding to Bill Harshaw, yes we are talking about different grants of power, regulation of commerce, making war (I don't think the 2nd Amendment is a source of Congressional power, it is a limit on such power) and raising armies. But, the crucial issue is how do we interpret the words of the Constitution when it grants Congress power. The Commerce Clause, Article 1, Section 8, Clause 3 of the U.S. Constitution, gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” No, it does not explicitly say 'Congress can make 'robert' and others buy health insurance'. But, that specific power is clearly included in the broader grant "to regulate commerce" just as the power to make me kill has been ruled included in the broader grant "to raise armies".

*"In 1917, one month after the entry of the United States into WORLD WAR I, Congress passed the Selective Draft Act (40 Stat. 76). The act created a government office to oversee conscription. It also authorized local draft boards to select eligible individuals for conscription. The following year, the Supreme Court upheld the constitutionality of conscription, noting that Article I of the Constitution gives Congress the power to "raise and support Armies" (Selective Draft cases, 245 U.S. 366, 38 S. Ct. 159, 62 L. Ed. 349 [1918]).

Congress instituted the first peacetime use of conscription in 1940 when it passed the Selective Training and Service Act (54 Stat. 885). This act, which expired in 1947, enrolled those who served in U.S. armed forces during WORLD WAR II. In 1948, Congress passed the Selective Service Act (50 U.S.C.A. app. § 451 et seq.), which was used to induct individuals for service in the KOREAN WAR (1950-53) and the VIETNAM WAR (1954-75). Presidential authority to conscript individuals into the U.S. armed forces ended in 1973. No individual has been conscripted into the military since then.

In 1976, the SELECTIVE SERVICE SYSTEM was placed on a standby status, and local offices of the agency were closed. President JIMMY CARTER issued a proclamation in 1980 requiring all males who were born after January 1, 1960, and who had attained age eighteen to register with the Selective Service at their local post office or at a U.S. embassy or consulate outside the United States (Presidential Proclamation No. 4771, 3 C.F.R. 82 [1981]). Those who fail to register are subject to prosecution by the federal government.

In 1981, the Supreme Court upheld the constitutionality of requiring only men, and not women, to register with the Selective Service (ROSTKER V. GOLDBERG, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478). The United States has never conscripted women into military service, nor has it ever instituted universal military service. It has conscripted only individuals meeting certain age, mental, and physical standards. Congress has allowed the deferral of conscription for certain individuals, including those who need to support dependents or are pursuing an education. Among those who have been declared exempt from service are sole surviving sons, conscientious objectors to war, and ministers of religion.

The U.S. government also has the power to conscript property in times of emergency."

Read more: Conscription - Service, Military, Selective, Individuals, War, and Act http://law.jrank.org/pages/5581/Conscription.html#ixzz1Cp5EZvWb

Posted by: robert on February 2, 2011 at 12:46 PM | PERMALINK

Concerned wrote "It may come as a surprise to you, but there's a lot of hardworking, financially responsible Americans out there that are sick and tired of giving others a so-called "free ride" via entitlement programs."

Don't be so hard on yourself. Many more hardworking, financially responsible Americans out there are perfectly willing to let you share in all the protections and opportunities America has to offer.

Posted by: jeri on February 2, 2011 at 1:04 PM | PERMALINK

Man- Concerned- you couldn't be more right. If we stopped subsidizing farmers,oil companies and the myriad of big businesses and defense contractors then and only then would the hard working amurican tax payer be more inclined to go with a gealth care plan that saves them money and lowers the national debt.
Oh by the way I heard that you blow little boys in turnpike restrooms-----Just sayin

Posted by: Gandalf on February 2, 2011 at 1:10 PM | PERMALINK

Thank you for the correction Alan @11:54am. I did lump Thomas with the other Federalists, and had failed to remember Jefferson was for local authority and the yeoman farmer.

Yet, to justify his inclusion, I'd like to point out Jefferson's ideas and ideals were embodied in his Democrat-Republican party - the origin of our modern-day Democratic party. The modern Republican party, ironically in light of today's party, was founded specifically as a national party, for the Union! -Kevo

Posted by: kevo on February 2, 2011 at 1:11 PM | PERMALINK

America is becoming the land of the Ferengi.

Posted by: Kill Bill on February 2, 2011 at 1:30 PM | PERMALINK

Furthermore, if the government has a right to mandate the purchase of weapons it will also have the right to regulate the type and limitations on those weapons. After all, if they're going to duplicate the situation with Obamacare that would have to be understood as part of the power the state (at any level) would have.

Posted by: digitusmedius on February 2, 2011 at 1:40 PM | PERMALINK

I still say that the best way to address this nationally, in order to both serve the gun-toting segment's love of firearms and fulfill the 2nd Amendment stipulations, would be to require all citizens to serve in the armed forces for a set period, and take their sidearms with them when they leave the service. That would cover the "well-regulated militia" item (there would be stipulations on the sidearms in order to simplify maintenance and ammunition supply) and provide for arming the populace while training everyone in responsible, effective use of the arms. This would also make some significant inroads into the regulation end of the problem, since the DOD would be stipulating the firearms involved, and any other items (like 30-round clips or full assault weaponry) would fall into an "additional ordnance" category that could be more effectively controlled.

It would also be at once informative and amusing to hear the reichwing whine about this being a "draft" and how it would hurt their freedumz™ and liburtees™. I for one would very much like to hear how the guns are Constitutionally mandated but the training to use them is not.


On a separate note, I would be interested in whether the sponsors of the SD bill benefited in any way from support froms arms manufacturers or the NRA: if either (particularly the manufacturers) provided campaign contributions, PAC contributions or other support it could be a useful item to oppose on those grounds.

Posted by: boatboy_srq on February 2, 2011 at 1:43 PM | PERMALINK

I've often thought it a matter of concern that the skills of shooting, blowing shit up, and engaging in organized violence rather than random mayhem are skewed so heavily toward the political right. I'd very much like to see a well-regulated militia run by lib'ruls, just to balance things out. After drill, we could all go out for quiche.

Posted by: CJColucci on February 2, 2011 at 1:54 PM | PERMALINK

@Allen, @kevo: Jefferson, along with Madison, was a federalist (small-f) in 1788, when ratification of the Constitution was being fought out state-by-state. They defended the idea of creating a strong central government in the face of antifederalist against any meaningful strengthening of the national (as opposed to state) governments--arguments that in many ways are the equivalent of today's Tea Party.

Jefferson and Madison broke with the Federalists (cap-F) in the early 1790s when they decided that Federalists like Hamilton were going too far toward corrupting the new nation through reliance on the late-eighteenth century equivalent of Wall Street, corporations, and the money markets. As Virginia agrarians (and slave owners), Jefferson and Madison had no use for banks and "excessive" central-government power that might wind up being aimed at slavery. In other words, Jefferson and Madison were taking up more than a few of the proto-Tea Party positions of the ex-antifederalists. Jefferson even veered perilously close to embracing what would later be called Nullification in his Kentucky and Virginia Resolutions of 1798, though Madison certainly didn't go that far (and Madison lectured TJ on just that point). To be fair, the 1798 Resolutions were aimed at the indefensibly abusive Alien and Sedition Acts.

Of course, there's TJ's 1801 inaugural address, in which he said that "We are all federalists, we are all republicans"--using both those words (small-f, small-r) in the cliche-sense as they had been understood during the 1780s, before being put to the test in terms of divisive politics. Needless to say, TJ remained a very partisan Republican (cap-R) when it came to his political battles against the Federalists (cap-F) during his administration, which included trying to purge the federal judiciary of Federalist judges (with John Marshall as the ultimate target).

Posted by: jm917 on February 2, 2011 at 1:58 PM | PERMALINK

Gandalf, thanks for making my point.

By the way, what's your infatuation with little boys about -- because I don't know how else those thoughts could have come into your head -- just sayin'

Posted by: Concerned on February 2, 2011 at 2:00 PM | PERMALINK

"It may come as a surprise to you, but there's a lot of hardworking, financially responsible Americans out there--who don't buy their own health insurance and whose medical bills get passed on to those who do buy it-- that are sick and tired of giving others a so-called "free ride" via entitlement programs."

There. Fixed.

Posted by: digitusmedius on February 2, 2011 at 2:25 PM | PERMALINK

If it passed I'd be happy to turn myself in, plead guilty and go to jail as a martyr to Republican stupidity.

But I live in NJ, where even OUR Republican lawmakers aren't this stupid.

Posted by: JEA on February 2, 2011 at 3:01 PM | PERMALINK

The U.S. O' A:

Paying some of the lowest taxes, yet being the biggest whiny babies about it.

What a great nation.

Posted by: HMDK on February 2, 2011 at 7:26 PM | PERMALINK

HMDK wins the thread!

Posted by: Doug on February 2, 2011 at 8:23 PM | PERMALINK



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