Two federal judges have struck down a key portion of the recent health care reform – the requirement that all Americans purchase health insurance or pay a penalty. Both judicial decisions argue that the individual mandate goes beyond the power granted to Congress to tax and regulate interstate commerce. Neither decision is overtly originalist, although I imagine most originalists oppose the individual mandate.
This begs the question: what did the Founding Fathers think about commerce? Those of you who took constitutional law will no doubt remember John Marshall’s famous statement that commerce is intercourse, and not just the trafficking of goods. This broad approach to commerce makes sense, given the utter failure of the Articles of Confederation to promote commercial regulation.
Here’s a second, less well-known, insight into the Founders’ and commerce. President John Adams signed a bill into law in 1798 requiring merchant marines to purchase health insurance. Don’t believe me? Read on:
CHAP. [94.] An act for the relief of sick and disabled seamen.
§ 1. Be it enacted, Sfc. That from and after the first day of September next, the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen that shall have been employed on board such vessel since she was last entered at any port in the United States, and shall pay, to the said collector, at the rate of twenty cents per month for every seaman so employed ; which sum he is hereby authorized to retain out of the wages of such seamen.
§ 3. That it shall be the duty of the several collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the secretary of the treasury ; and the president of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick, or disabled seamen, in the hospitals or other proper institutions now established in the several ports of the United States, or in ports where no such institutions exist, then in such other manner as he shall direct: Provided, that the moneys collected in any one district, shall be expended within the same.
[ Approved, July 16, 1798.]
I can’t wait to see how Justices Scalia and Thomas deal with this bit of history when the health care law reaches the U.S. Supreme Court. I am optimistic about the law’s chances of survival. The Court’s recent Commerce Clause jurisprudence is much closer to John Marshall’s conception than the laissez faire attitude that dominated the Court before the New Deal. I predict the law will get at least six votes, including the support of the chief justice (though I imagine he will go to great lengths to criticize the law as bad public policy).
So there you have it – John Adams is the only person in American history to be accused of being a monarchist and then (200 years later) a socialist.