The Use and Abuse of the Founders: The Individual Mandate is Still Unprecedented and Unconstitutional

Julia Shaw /

As soon as President Barack Obama signed the Affordable Health Care for America Act of 2010 into law, Virginia Attorney General Ken Cuccinelli filed suit against the federal government, arguing that the legislation is unconstitutional.

Cuccinelli highlights the individual mandate as particularly offensive to the Constitution, emphasizing that “at no time in our history has the government mandated its citizens buy a good or service.”

Some disagree with Cuccinelli, pointing to the Second Militia Act of 1792 as evidence that the individual mandate is not unprecedented and furthermore that the Founders would have supported the recent health care bill. This argument is analytically defective. The Second Militia Act of 1972 neither sanctions nor foreshadows the individual mandate in the recently passed health care legislation.

Some point to this list of requirements in the Second Militia Act as evidence that Congress has, in fact, required its citizens to purchase a good or service. The Second Militia Act of 1792 indeed states “that every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder.” Since the Second Congress passed the Second Militia Act that requires members of the militia to procure a musket and bullets, it is therefore suggested that the Founders (and the Constitution) would also have supported the recent health care bill that requires all members of society to purchase health insurance. Support of the Second Militia Act does not imply support for the health care bill.

Unlike the reach of the health care bill, the Second Militia Act applies to a narrow sub-section of society: white, male citizens between the ages of eighteen and forty-five who are members of the militia. Section I of the Act, which includes the list of required goods, begins: “Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” It follows that the Second Militia Act would not apply to anyone not enrolled in the militia: including non-citizens, the infirm, men younger than eighteen, men older than forty-five, or women.

Section II of the Act further exempts a whole host of men, despite fitting the age and fitness requirements, from participating in the militia and therefore the requirement of procuring muskets, bullets, and other such items pertaining to militia service. Specifically exempted from the militia  are the Vice-President of the United States, judicial and executive officers, members of the House and Senate, post officers, certain ferry officers and stager drivers to name a few. Moreover, the language of the statute requires to a member of the militia “provide himself” with the list of goods. It is possible that a man could have inherited a musket, bartered for a knapsack, or made his own bullets, and still be in compliance with the Act. In contrast to the Second Militia Act, the health care bill applies to any living breathing person in America (except maybe top Hill staffers) to purchase health insurance. It is unlikely one could inherit, barter, or create one’s own health insurance and avoid the penalty of law.

The greatest difference between the health care bill and the Second Militia Act is constitutionality. There is solid constitutional basis for the Second Militia Act: Article I, section 8, clause 16 states that Congress has the power “To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Articulating a list of goods required for militia service is certainly within the bounds of this clause.  Indeed, Federalist 29 emphasizes that such regulation of the militia is part of “superintending the common defense, and of watching over the internal peace of the Confederacy.”

In contrast to the Second Militia Act, the health care legislation lacks any constitutional basis or legal precedent to support its requirement that every living person in America purchase health care insurance. Some have suggested the Commerce Clause to be basis for the individual mandate. But this is wrong. The Commerce Clause does not empower Congress to impose a duty on individuals as members of society to purchase a specific service that would be heavily regulated by the federal government. To be clear, neither the original meaning of the clause nor even the most expansive court interpretation of the commerce clause authorizes the individual mandate.

The individual mandate is deeply problematic and truly unprecedented. While it is important to look to Founders’ writings and examples to guide today’s policy questions, one should avoid selectively quoting and ultimately mischaracterizing the Founders.