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.