Harvard Law, the Commerce Clause, and the Obamacare Mandate

Harvard Law School Professor Einer Elhauge published an article in The New Republic titled, “If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?” The foundation of his argument is the belief that the Militia Act of 1792 was a mandate to purchase a firearm, and the 1790 and 1798 acts by Congress requiring that ship owners purchase medical insurance for seamen, was a mandate forcing the citizens of the states to make a commercial purchase under the Commerce Clause.

Professor Elhauge presents as fact that these two mandates required engagement in commerce, thus setting  200+ years of precedent by the first Congress, “which was packed with framers,” as per his depiction. He then states, “Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases.” The professor appears to subscribe to the oft employed licentious theorem of the Left that if it is not enumerated in Article 1, Section 8, then Congress can presume it has unfettered authority to mandate, tax, legislate, control, and dictate wantonly. But, plausibly, historically, and factually, that is neither the intent nor the spirit of Article 1, Section 8, as it was not an enumeration of what the government should or could do, but rather a very narrow set of limitations constraining what the government can do. What the government cannot do is mandate commercial purchases under the Commerce Clause, as that power was not enumerated, intended, nor would it have survived ratification. Perhaps a perfunctory history lesson of why the Constitution was created, and the purpose of the Commerce Clause, may be the antidote to apocryphal balderdash.

Liberals, progressives, and a particular genus of law professors are wringing their hands in animated intoxication regarding these two particular mandates cited by Professor Elhauge. And reinforcing Professor Elhauge’s theorem of mandated purchases under the Commerce Clause, the Left are evidencing case law functioning as unsanctioned amendments to the Constitution, or as unsanctioned legislation fabricated by American jurisprudence. This benighted infatuation with stare decisis, this judicial inbreeding of the Supreme Court assigning dominion of past Supreme Court rulings as surrogates for the Constitution, has resulted in the passing of deleterious and recessive traits to each Supreme Court progenitor. As with genetics, if the Supreme Court reaches a faulty decision, or flagrant political or agenda driven decision, this trait is passed down to each successive Supreme Court that is indentured by the judicial genetics of stare decisis. Professor Elhauge appears to be erroneously attesting that the first Congress, “which was packed with framers,” mandated that the citizens of sovereign states, states that ceded very few enumerated powers to the newly created federal government, were forced to engage in commerce ad libitum.

Before brandishing adulterate case law and phantom mandates, one question must first be answered: What was the purpose of adding the Commerce Clause to the Constitution?

One must delve much deeper than the burlesque Supreme Court assembled by FDR and its league of handpicked ideologues parading around as judiciously inclined justices. These robe wearing sycophants infected American constitutional jurisprudence with the New Deal, and especially Wickard v. Filburn. Wickard v. Filburn breached the boundaries of the Constitution by affording the federal government an almost immeasurable expansion of powers via the Commerce Clause. And if this unburdened scope of power was the original intent of the Commerce Clause, what was the point of the founders penning the remainder of the Constitution if it is subordinate to the Commerce Clause? Indeed, it is necessary to delve beyond FDR’s reign, beyond Professor Elhauge’s imaginary mandates of commerce, back to the Articles of Confederation and the commercial dysfunction between the states.

Prior to the ratification of the United States Constitution, the governing document of the United States was the Articles of Confederation. Of the myriad weaknesses of this document, the focus will be commerce and the militia, as these two areas are what Professor Elhauge perhaps employed in some fashion of palmistry to arrive at his supposition.

Prior to the American Revolution, colonial commerce was regulated by Great Britain, and to a greater extent in the years just preceding the Declaration of Independence. After independence was declared, the framework of colonial commerce changed, immediately going from regulated to unregulated. Without a structured and enforceable set of regulations to ensure the equitable and uninterrupted flow of the transportation of goods between the states, counterproductive trade barriers between the states arose and jeopardized the necessary commercial alliances of the states essential for sustainability of the nation. The states having the advantage of ports charged exploitative tariffs on goods that passed through their ports en route to and from the states without ports. This started a series of trade wars pitting states with ports against states without ports, with both sides charging counterproductive tariffs.

To compound the problems created by discordant commerce, the Articles of Confederation lacked the mechanism to provide and enforce a uniform monetary policy to protect commerce as well. Under the Articles of Confederation, the states had the authority to setup their own monetary systems and print their own currency.

Article III of the Articles of Confederation addresses the states entering into a “firm league of friendship with each other, for their common defense,” while Article VII addresses the appointing of officers of the land forces raised by the states, and Article VIII addresses the expenses and funding of “All charges of war, and all other expenses that shall be incurred for the common defense or general welfare.” The government did not have to power to raise an army for defense, and the government did not have to funds to honor Article VIII regarding paying expenses of defense, as the government was unable to even collect the taxes due to pay off the debt from the Revolutionary War. The states generally ignored the federal government regarding taxes, and the Articles left the government powerless to collect taxes.

Even though the states maintained their militias after the end of the war, the inability of the federal government to raise an army left the newly sovereign states vulnerable without a united military front. Even after the Treaty of Paris was signed, the forts in Northwest Territory remained under British control and occupation. The states were not enforcing nor abiding by the provisions of the Treaty of Paris, and the government lacked the power to compel them to do so.

With the Articles of Confederation rapidly approaching critical mass of failure, the necessity of a revision of the document became imperative. A Constitutional Convention to revise the Articles of Confederation was called on May 14, 1787 and lasted until September 7, 1787. James Madison’s solution to the failings of the Articles of Confederation was to create an entirely new governing document and government. The final result of the four month long convention was the greatest governing document ever created, the United States Constitution. Among the very narrow and limited enumerated powers the states ceded to the newly formed government was the regulation of commerce, and the ability to tax to support a military. Other than the very narrow and limited enumerated powers the states ceded to the newly formed government, and additionally narrowed further by the Bill of Rights, the states retained all previous powers not ceded in the enumerations in Article 1, Section 8 of the Constitution, and the Tenth Amendment guaranteed the states’ sovereignty not ceded as well.

The members of the Continental Convention, while debating the structure of the Constitution, were guided by King George III and despotism, as charged in the Declaration of Independence, on one shoulder, and the anarchy disposition of the Articles of Confederation on the other shoulder. The genius of the Constitution was the equipoise between totalitarianism and anarchy. To manifest the ignorance of contemporary liberal legislation, jurisprudence, and the unprecedented abyss of nescience at 1600 Pennsylvania Avenue we suffer, the boundaries of how much power the federal government would be able to exert over the states was set by James Madison with his Virginia Plan. Madison proposed that the newly created legislature have the power to invalidate state laws. The proposal was hastily withdrawn for obvious reasons.

The Commerce Clause of Article 1, Section 8, contrary to what the subversionary left postulates, the size of an industry, its percentage of GDP, or whether every citizen will at some point in their life utilize the industry, are outside the purview of the Commerce Clause. During the era of the Revolutionary War and the Constitutional Convention, the term “regulate commerce” had a very specific meaning: All products and articles of trade, passing between the states, through the various ports, or along the waterways between the states, and their subjectivity to tariffs, were subjected to being regulated by the Commerce Clause as rectification of the Articles of Confederation. The Commerce Clause had no authority over intrastate commerce. The only aspect of commerce that the states surrendered to the federal government was their right to impose tariffs on the goods being transported. James Madison’s summation of the limits of the Commerce Clause reigns supreme over preposterous case law, law school and judiciary ideologues, and the vacuous ideology of the left: “A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter.”

It is also noteworthy that the term “commerce” during the era of the Constitutional Convention was categorically extraneous from the manufacturing or production of agriculture, fur, textiles, firearms, printing, farming, and all goods, as it was limited to only controlling tariffs and the transportation of these goods.

As narrow in scope as the Commerce Clause was intended, the powers of the federal government regarding the defense of the nation are extraordinarily expansive in contrast. In Article 1, Section 8 of the Constitution, the founders enumerated 7 clauses regarding the militia, navy, and defense of the United States:

  • Provide for the common defense
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years
  • To provide and maintain a Navy
  • To make Rules for the Government and Regulation of the land and naval Forces
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions
  • 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

To augment and clarify the expansive powers of national defense, the government passed the Militia Act of 1792, and it was this section that caused Professor Elhauge to have a mandated commerce epiphany, with the following directive:

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; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

In Article III, Section 2 of the Constitution under the judicial powers is the phrase “admiralty and maritime jurisdiction.” In the founding era, the term “maritime” was recognized as the high seas, and the term “admiralty” was recognized as domestic water ways, including harbors and ports. Soon after the ratification of the Constitution, the federal courts, which were granted the power under Article III, Section 2, concurred with the legislation regarding its broad powers of admiralty and maritime jurisdiction.

Article I, Section 8 of the Constitution states, To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

In addition to the “admiralty and maritime jurisdiction” established in Article III, Section 2, Article I, Section 8 enumerates the government’s power of legislation over dock-yards.

Under its Admiralty power, the Congress created two acts. The 1790 Act required all ships more than 150 tons, and traveling outside American waters, to maintain a medicine chest, and the 1798 Act imposing a 20 cent per month tax to be withheld on the wages of seamen. These were explicit powers under the Constitution, and all ships, crew, and passengers were under the jurisdiction of the federal government. The 1790 and 1798 acts of requiring medicine chests and a 20-cent per month tax for the building of seamen hospitals were justifiable mandates under various constitutional authorities, including the power to provide for the Navy, which would include merchant ships that were regularly engaged in skirmishes with the French, as authorized by Congress, thus making them quasi-militaristic.

Prof Einer Elhauge’s entire argument is based on several untruths and inconsistencies. When the foundation of an argument is based on untruths and grandiose depictions, its prognosis is bleak once inoculated with the truth.

Professor Elhauge states in his New Republic article dated April 13, 2012, “In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms.” Contrasted with an article he wrote in the January 5, 2012 New England Journal of Medicine, “In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm,” Professor Elhauge’s ability of maintaining a static argument has been compromised. The difference between “buy firearms” and “obtain a firearm” is not a matter of semantics, but rather an inconstant argument.

But in contrast to either of Professor Elhauge’s statements, the actual language of the Militia Act of 1792 stated, “That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock….” No citizen was required anything other than to have in their possession a good musket or firelock. There was not a mandate to enter into a commercial transaction to purchase a good musket or firelock, and if there was a mandate, it would have been justifiable under the powers enumerated to the Congress under the military powers.

Professor Elhauge takes his argument to an embarrassing level when rebutting Georgetown Law Professor Randy Barnett’s argument “it was different because it did not require individuals to buy guns if they got them from someone else.” Professor Elhauge uses the Obamacare mandate of requiring one to have health insurance as not a mandate to purchase insurance. He states that if someone else buys insurance for you, it is the same as someone buying you a gun. The difference between the two is insurmountable. A gun is tangible, and insurance is intangible. Someone cannot give you an extra health insurance policy they are not using, you cannot inherit a health insurance policy, you cannot be gifted a health insurance policy, a gun purchase is a onetime purchase, and a health insurance policy is a perpetual monthly purchase.

Professor Elhauge also takes liberty with math and context. He wields the phrase that the Congress was “packed with framers” too much too often. There were 55 delegates, with 20 of them being present at the Constitutional Convention. Less than 50 percent is not quite the mathematical or common sense definition of “packed.”

Professor Elhauge writes,

The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

As previously stated, merchant ships and their seamen were at times engaged in combat with the French, as authorized by Congress. It was during this time when treaties with France were repealed that the skirmishes at sea became more hostile, and the prospect that seamen could potentially be engaged with the French, that a 20 percent withholding from seamen for hospitals for their care was enacted. Contrary to Professor Elhauge’s claims, no seamen were required to purchase insurance, the 20-cent deduction was not an insurance policy, and the 1790 Act only required a medicine chest on board.

“History, in general, only informs us of what bad government is,” Thomas Jefferson wrote in an 1807 letter 20 years after the Constitution was written. Jefferson’s categorical delineation of the state of mind of the men tasked with creating a form of government with just enough power to execute its narrowly defined functions  has no equal.

Today Barack Obama, the Democratic Party, nescient law school professors, and mutineer judges are the archetypical foundation of what bad government, bad education, and bad jurisprudence are, according to Thomas Jefferson. Unlike the lack of the necessary power under the Articles of Confederation, today’s bad government is the presumption that the federal government has the power to regulate every facet of an individual’s life.

This country does have a governing document, the Constitution, and each and every clause contained within the document is the result of causality. Each and every clause within the Constitution has a spirit, a purpose, a precise reason for being, and can be narrowed to two primary functions: to correct the inadequacies of the Articles of Confederation, and myriad layers of the protection of states’ and individual’s rights from the federal government.

It is with bad scholarship, such as Professor Elhauge, et al. of …”trying what meaning
may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed,” as Jefferson warned; and by creating meanings and events that never were intended nor transpired, teaching of case law as constitutional law, the constitutional illiteracy of Harvard Law graduate Barack Obama, and the malignance and willingness of the courts to rely on stare decisis as constitutional law that will be the undoing of this republican form of government more so than any other threat or crisis this country has ever faced.





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