Originalist Sin By Eliot Spitzer

[xchrom]

http://www.slate.com/articles/news_and_politics/the_best_policy/2012/04/affordable_care_act_the_supreme_court_and_the_constitution_harvard_law_professor_einer_elhauge_shows_how_the_founding_fathers_supported_mandates_.html


Will Antonin Scalia and the other conservative justices cite the Founding Fathers if they overturn Obamacare?
Alex Wong/Getty Images.

The five conservative justices on the Supreme Court—Thomas, Alito, Scalia, Roberts and Kennedy—cloak themselves in the myth that they are somehow channeling the wisdom and understanding of the Founding Fathers, the original intent that guided the drafting of the Constitution. I believe the premise of their argument is itself suspect: It is not clear to me how much weight should be given to non-textually based intent that is practically impossible to discern more than 200 years later. Most of the issues over which there is constitutional dispute today could not even have been envisioned when the document was drafted.

Even so, it would be an even better response to the conservative wing’s claim of perceived understanding of original intent to be able to refute their claims by showing them to be historically and indisputably wrong. So once again let’s venture into the world of the health care debate. The consensus view is that existing Commerce Clause doctrine clearly authorizes the type of mandate passed in the act—see in particular the affirmance of the statute by ultraconservative Judge Silberman of the D.C. Circuit Court.
Nonetheless, those opposing the bill insist that an individual mandate has never been done and the framers would simply not permit such an encroachment on liberty and freedom.

Some spectacular historical reporting by Professor Einer Elhauge of Harvard Law School in the New Republic thoroughly rebut the argument. He has found three mandate equivalents passed into law by the early Congresses—in which a significant number of founders served—and reports that these bills were signed into law by none other than Presidents George Washington and John Adams. As Founders go, one might consider them pretty senior in the hierarchy. Their acts can probably be relied upon to give us a reasonable idea what the Founders intended to be the scope of congressional and governmental power.

[CanonRay]

1. If only they were operating in a fact-based and historically accurate environment

That is not, however, the case.

[Schema Thing]

2. marking

[Romulox]

3. Isn't Spitzer a lawyer? None of his examples fall under the Congress' COMMERCE CLAUSE authority

to compel a person not already engaged in commerce to do so.

L1 stuff, Spitz.

[1StrongBlackMan]

4. Are you agreeing ...

Or disagreeing with Spitzer's argument?

Actually, it's not an argument, as much as historical documentation of political fact, that refutes the rightwing distortion of history.

[Romulox]

6. His examples are not on point. Which is why the government did not brief them.

In particular, Spitzer apparently misunderstands that the Congress acts with authority derived from various sections of the Constitution. The SCOTUS' review of the ACA is with regard to its validity as an expression of the Congress' Commerce Clause power. The militia example obviously stems from Congress' power under Art. 1, Sec. 8, ("The Congress shall have Power...To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions&quot and thus is not relevant to this discussion on any level. His other two examples involve regulation of voluntary economic behavior.

None of the examples were argued or briefed by the government. That's because they are not on point. This should be obvious to a "legal expert" such as Mr. Spitzer.

[1StrongBlackMan]

10. How are the examples not on point?

BTW, briefing "Original Intent" is the weakest form Appellate argumentation ... especially, when that is not the issue in question.

[Romulox]

12. Um, I just explained how, in detail. My argument had not a thing to do with "original intent". nt

[1StrongBlackMan]

14. Okay ....

While IMHO you are incorrect, I'll accept your clarifying explanation.

[Romulox]

16. I put a great deal of effort into responding to you, for that?

I'll remember not to bother, next time.

[1StrongBlackMan]

19. I apologize ...

I, for some reason, I just responded to the last paragraph without paying much attention to the preceeding paragraph (Brain-fart, maybe?)

But that said, how do you read:

•In 1790, a Congress including 20 Founders passed a law requiring that ship owners buy medical insurance for their seamen. Washington signed it into law.

and,

•And in 1798, a Congress with five framers passed a law requiring that all seamen buy hospital insurance for themselves. Adams signed this legislation.

voluntary economic behavior?

Isn't that the exact same mandate that is being challenged?

[Warren Stupidity]

5. Did you read the article?

Spitzer cites three examples:

Amazingly, the examples of individual mandates passed by the founders are so directly applicable that the claim that original intent precludes affirming the heath care act should become almost laughable:

In 1790, a Congress including 20 Founders passed a law requiring that ship owners buy medical insurance for their seamen. Washington signed it into law.

In 1792, another law signed by Washington required that all able-bodied men buy a firearm. (So much for the argument that Congress can’t force us to participate in commerce.)

And in 1798, a Congress with five framers passed a law requiring that all seamen buy hospital insurance for themselves. Adams signed this legislation.

In aggregate, these laws show that the Founders and the Congress of the time were willing to force all of us to participate in a particular act of commence and were comfortable requiring both the owner of a business and the individual employee to buy insurance in order to assure that health costs would be covered at a societal level. That is a pretty complete rebuttal to all the claims being made by the originalists as they relate to the health care act.
But what is so powerful about these historical finds is not just that they rebut the specific argument about original intent as applied to the health care act. This history lays bare the ahistorical nature of the justices’ claims at another and deeper level. For the types of bill passed in 1790, 1792, and 1798 show the Founders to have been doing exactly what congress did especially well in the era of FDR—--experimenting with solutions and approaches to resolving social issues in ways that made government part of creative problem solving.

[Romulox]

8. 2 examples involve voluntary commerce, the other, regulation of the militia.

Zero of his examples involve compelling people not already engaged in commerce to do so, based on Congress' power under the Commerce Clause.

[Warren Stupidity]

9. "a law requiring that all seamen buy hospital insurance"

is exactly on point. Seamen are not 'engaged in commerce', they are not the merchants or ship owners. Claiming this example does not apply at all is almost as silly as claiming that a mandate requiring every able-bodied man to purchase gun does not apply 'cause its the militia'.

All of us are 'engaged in commerce' if a slob swabbing a deck is 'engaged in commerce'.

[Uncle Joe]

11. From the government not a private for profit "health" insurance industry,

that's a major difference and in those days "every able bodied man" could be viewed as militia, there was no other logical reason to require such a thing.

Whereas the former is indeed an attempt to promote the general welfare in a specific occupation, the latter is a violation of the First Amendment coercing the virtual entirety of the people to directly support an industry diametrically opposed to their best interests.

The people are in effect forced to pay the for profit "health" insurance industry to lobby against them and to use that industry's profits to promote sympathetic "for profit" candidates via Citizens United to power.

[Romulox]

13. Yes. Seamen are indeed "engaged in commerce", by definition. Odd to argue otherwise. nt

[Warren Stupidity]

15. then so are we all

which is my point.

[Romulox]

17. "Seamen" are either MERCHANT MARINES, voluntarily engaging in commerce, or

members of the US NAVY or similar, and thus subject to the Congress power to regulate the military.

"Seamen" doesn't mean "we all". So, I don't see your point.

[Warren Stupidity]

20. that is rather pathetic.

The federal government has been regulating workers and the workplace for a long time. The fact that this regulation included a healthcare mandate on a class of workers 200 years ago is a problem for your position on this. If the federal government could mandate that these specific workers must purchase health insurance, why can it not also mandate that another class of workers also purchase health insurance? And then why not all workers?

Perhaps it might be best to agree that this is indeed a relevant fact.

[Romulox]

21. Pathetic, indeed. Nobody suggested the gov't can't regulate workers. We're discussing the mandate

which applies to EVERYONE, not just "workers".

If you don't understand why that distinction matters, you simply don't understand the parameters of this debate.

[Romulox]

7. Frankly, I'd rather hear more from that guy who wants Marbury v. Madison overturned.

[aikoaiko]

18. Experts who worked with Spitzer rate this essay a 2 out of 5.

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