The Individual Mandate and the Constitution

While the pundits thrive on turning the Supreme Court into a sporting venue, a couple of law scholars point out the obvious constitutionality of Obamacare’s individual mandate.

It’s difficult to imagine what the founding father and framers of the constitution had in mind when they set into motion the creation of the country and the republic more than 200 years ago, but we often seek their guidance in some sort of hindsight game of guessing their intentions. What would the framers think about abortion? Gay marriage? Government mandated healthcare? It’s not an entirely ridiculous practice – the US Constitution is the oldest living document of its kind in the world. This is no small feat for a country that is often regarded as a relatively young one. There are costs and benefits in basing our laws on the values and intentions of men who lived in the late 18th Century, but in the most recent instance of invoking the framer’s intentions, critics are barking up the wrong tree.

After a moment of reflection, it’s remarkable that the debate over the constitutionality of the individual mandate within the Affordable Care Act (ACA, aka Obamacare) has come this far. Yesterday, two remarkable articles were published in the New Republic.

In one, conservative constitutional law professor (Columbia) Henry Paul Monaghan argues that the mandate is obviously constitutional. In a nutshell, Congress has the right to regulate interstate commerce; since most people will, at some point in their lives, require medical care in the form of a service for a fee, it qualifies as a form of commerce that applies to the greater population; Congress has a right to regulate health insurance under the purview of interstate commerce. There may be outliers who live “off the grid” and would be forced to purchase something they may not need, but there is also a decent chance that they too will, at some point, need medical coverage. And besides, we often make sweeping legislation for the greater good at the cost of certain outliers – they ought not be an excuse to hold back society as a whole. The most telling sentence in Monaghan’s article was the last two sentences:

I recognize that many persons believe the health mandate is very bad legislative policy. But the appropriate judicial response to such a complaint has long been clear. The Court was admirably forthright about the point in its ruling in Munn v. Illinois in 1876: “For protection against abuses by the Legislature, the people must resort to the polls, not the courts.”

In the other article, another professor of law (Harvard), Einer Elhauge, gives examples of government mandated health coverage enacted by the founding fathers. They very first Congress, which met in 1790, passed a law mandating all ship owners to purchase medical insurance for their seamen. The bill was signed into law by a man named George Washington. Eight years later, an issue arose over the fact that this law covered drugs and physicians services, but not hospital stays. Congress responded by…wait for it…passing a law requiring all seamen to purchase hospital insurance for themselves.

I’m not a fan of trying to discern the exact intention of the Constitution’s framers. Even if we do pursue their intentions, we must make the right decision even if it conflicts with the framers’ intent. In this hullabaloo over the ACA’s constitutionality, there have been too many critics crying foul that we are violating the principals of the framers. It turns out even the framers were pretty clear in their support of individually mandated health coverage.

sidenote: there have been other, weirder individual mandates too. In 1792, Congress passed a law requiring all “able-bodied men” to buy fire arms. That’s right – not only a right to bear arms, but a law requiring that you must. Perhaps it’s a good thing that we don’t follow everything our framers set down to ink.


3 thoughts on “The Individual Mandate and the Constitution

    1. You are right Amit – it’s safe to say that a good number of the founding fathers would not have imagined universal suffrage. But, this topic does come up from time to time when talking about the founders and framers. The explanation that is most often offered is that the Constitution itself is as good a document as you can get, and that it held within it, the language and values needed to rid itself of its stupider clauses. For example, the part that recognized each slave as having 3/5 of a vote was a “minor” part of the constitution, but the larger and more prominent references to equality of man and inherent rights thereof were more than enough to eventually over-ride the slave vote nonsense.

      I’m a bit reluctant to give the Constitution or the founders this much credit, but credit is due and it may serve our interests to look at their intentions, but only as a form of reflection. It’s amazing that since its ratification more than 220 years ago, the Constitution has been amended only 17 times.

      In other words, its a document worth defending, but it would also be an insult to its intended purpose if we never adapted it.

  1. If you want to understand what the Founding Fathers of the USA meant, I suggest you read the Federalists’ Papers:
    – audiobook:
    – electronic book:
    – online on a dedicated website:
    – online on the site of the library of congress:

    Good reading!

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