The Spectacle Blog

Eliot Spitzer’s Constitution

By on 5.1.12 | 2:02PM

Yesterday Eliot Spitzer pronounced himself very impressed with a New Republic article straining to find the Founding Fathers supporting something like the individual mandate. The argument is essentially that because members of the militia had to own guns and provisions were made to keep a relatively small number of seamen from becoming public charges, Congress can require the whole country to purchase health insurance or other goods. (Note to self: refrain from making joke about Spitzer and seamen.)

But the 1798 Act for the Relief of Sick and Disabled Seamen doesn't exactly require the purchase of health insurance. As Dave Kopel explained when this chesnut first made the rounds, the legislation actually imposes a tax to be withheld by the employer and turned over to the Treasury on a quarterly basis, to be spent by Congress. There had also been previous federal laws requiring ship owners to provide health care for seamen or pay for their care while in port. And this is all limited to one regulated industry, not the entire U.S. population or workforce.

The firearms requirement of the 1792 Militia Act was much broader, since at the time the militia was free white men between the ages of 18 and 45, subject to some exceptions. But that law was rooted in Congress' power to raise and organize a militia under Article I, section 8, clause 16 of the Constitution. Everyone outside the militia was exempt and there was broad latitude as to how the weapons could be obtained. (By the way, I look forward to future Eliot Spitzer articles arguing for universal firearms ownership or the proposition that the Alien and Sedition Acts were constitutional because John Adams signed them.)

"Offering the militia duty as a precedent for the individual insurance mandate is revealing," writes Randy Barnett. "For it highlights the fundamental question posed by this case:  does every citizen of the United States serve at the pleasure of the Congress of the United States in the same manner as a draftee serves in the military?"

The individual mandate rests on such assumptions, or at the very least a general police power for the federal government. The ratifying public would not have approved the Constitution if they believed it contained such powers. That, and not some magical attempt to determine what the Founders would do today, is what matters. Who delegated these powers?

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