Foundations – Kate Nash
There’s a lot of talk going round in the last day or two about a 1798 health care law that is vaguely like the individual mandate. Ha ha! the liberal blogosphere cries, the Founders themselves believed in the Constitutionality of the mandate!
The only problem with this argument is that it’s complete bollocks. For a couple reasons. First, as Paul Waldman notes: “we can’t decide questions of contemporary policy by trying to figure out what Jefferson, Adams, and Madison would say about them. We don’t know for sure, and we can’t know for sure, any more than we can know whether Gouverneur Morris would have opted for an iPhone or an Android phone. We live in a world that is unimaginably different from the one they lived in, with our computing machines and horseless carriages and a million other social, political, and technological developments.”
The corollary to this point is that attacking the Tea Party constitutional theory on the details is a fool’s errand. The proper route is to go after the theory of originalism and ‘strict constructionism’ itself.
Which leads to the second major problem with this argument: the ‘Founders’ don’t exist. There are many people who sat in Philadelphia, there are many people who worked in the government in the early years. They had a variety of opinions. One set of them, the Federalists, believed in the expansive power of the national government. Adams was of that group. The Jeffersonian (or the Democratic-Republicans) emphatically disagreed.
Put it this way: you know what else was done in 1798? The Alien and Sedition Acts. Are there a lot of liberals who want to use the part of Adams’ theory of constitutionality that includes expulsion without cause or arrest people for complaining about the government?
You also might want to note that the Federalist position held very little power once Adams was gone. They basically collapsed as a Party within a decade, as the Jeffersonians ran things until Jackson came along.
From a modern perspective, the Federalists sound a lot more attuned to our perspective but surely a historical perspective would note that the ‘big national government and expansive Commerce Clause power’ was a minority position in the early years of the Republic.
This all makes clear that debates about how to interpret the Constitution and its grant of powers is not a new one. It has been going on right since the beginning. Rather than valorizing some mythical sense of ‘the Founders’ it would be better to identify the strength of the argument made by a certain set of them, and the necessity of changing interpretive strategies as conditions have changed. And also maybe noting that a lot of the ‘strict constructionist’ theories in the early days had a serious undertone of trying to limit the power of the national government so that it couldn’t interfere with slavery.
It’s fun to play gotcha with this 1798 bill, I guess, but it doesn’t really accomplish anything. The individual mandate is constitutional because it is grounded in a large set of powers that have been granted to Congress over the past 200 years. There is a plausible reading of the Constitution that would disallow it, but our historical perspective argues against choosing that interpretation. That’s as good of an argument as you’re going to get. Fortunately, it’s plenty good enough.