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

    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.

    Posted in Ongoing Priorities [slideshow_deploy]

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

    1. joanne says:

      The Constitution states that the government should provide for the common defense, yet Washington signed into law an act which required white men (need I remind you they were THE ONLY ONES who mattered at the time) to get their own supplies. No, it doesn't say they must PURCHASE the supplies, but it was debated at the time whether or not the government should pick up the tab for the poor white men who couldn't afford the mandated supplies. By the way, nothing is stopping any of us from bartering for health care. Example, "If you come paint my house, I'll pay for your healthcare for a month".

      So your typical white man could make his own bullets? Where did he purchase the supplies for this? If I break my arm, I can make my own sling, but I still need to go to the hospital. You can play all the word games you want, but this act does set a precedent.

      If this isn't enough for you, read about the time the government made people pay for their own health insurance. In July of 1798, Congress passed, and President John Adams signed into law an act “For the Relief of Sick and Disabled Seamen,” establishing the Marine Hospital Service. Look it up; it's facinating reading.

    2. J.C. Hughes, Texas says:

      PS: I've served in the active and reserve military. In both cases I was required to purchase personal uniform items that were mandated when providing for the common defense. Such could just as easily be required tools for the job.

      • Nick says:

        However, You ARE NOT mandated to serve in the military, completely voluntary. Health insurance mandate applies to EVERYONE, unless your dead.

    3. Kevin Habib, Glen Burnie, MD says:

      Can Heritage get more hypocritical? In your very own Stuart Butler’s testimony in 2003 on how to obtain unviersal coverage – his first 2 suggestiosn are:

      1 – individual mandate
      2 – subsidies for those who cannot afford it


      What has happened to GOP?!?! They are crumbling in front of us due tot he nutjob teapartiers.

    4. J.C. Hughes, Texas says:

      The whole darned bill is unconstitutional. Every bit of it. The constitution’s specified limitations on federal authority makes this case. What’s considered appropriate taxation under the commerce clause and the Tenth Amendment should be clarification enough.

    5. Pingback: Caffeinated Thoughts

    6. oljabarankina says:

      In 1917 in Russia, communism was build by using three simple rules:

      1. To flush to toilet every ruble borrowed from greedy investors;

      2. To print uncontrolled amount of rubles to devaluate to zero the rest the of rubles that still kept on the hands of the people who distrust government’s bonds;

      3. To put mandate on everyone to do and to consume only what government directs.

      Experience suggests that it is right, simple and sustainable way to make majority of people happy at list for 74 years.


      If A (house) decreased, L ( mortgage) is constant, SE may become negative. That’s the reason not to pay L anymore.

      If A (Uncle Sam) is constant, L ( government’s bonds and social liabilities) increased, SE may become negative. That’s the reason to be bankrupt.

      If the way Uncle Sam to be bankrupt is not an option for majority, that’s the reason to replace capitalist system to mandates system.

      Capitalism is not fair: greediness and freedom to fail are allowed.

      Mandates system is very fair: everyone is forced to do what majority wants him to do.

      Missing food, energy and other goods that is common for mandates system is nothing comparing with the victory of fairness.

    7. Ric, Lawton OK says:

      A bounus for "kevin"…..

      Obama was strenously against the individual mandate as Candidate Obama and pummelled Hillary mercilessly about the head for her support for it….

      Guess what?

      Candidate Obama was right!

      Now President Obama flip-flopped on that when it was clear he couldnt have his stealth HC takeover without it!

      Another Obama lie….and hugely dangerous support of Unconstitutional measures!

      Now which is worse – the GOP which has renouced a dangerous and bad idea and the lying statists of the left (lead by Obama) who have now become the champions/defenders of this bad and dangerous idea!

    8. Mark says:


      The very first line of the link you posted states the following:

      "My name is Stuart Butler. I am Vice President of Domestic and Economic Policy Studies at The Heritage Foundation. The views I express in this testimony are my own, and should not be construed as representing any official position of The Heritage Foundation."

      Just saying…..

    9. Rich Stewart, Carlisle PA says:


      Four things -

      1. J.C.’s point about requiring someone in the military to purchase specific items out of pocket is “the example” of a constitutional authority to mandate purchase of something. One that is specific to the role of the Federal government and its responsibility and authority with respect to the military. I personally purchased many “required” items out of pocket during my Naval career. The Federal government’s role and Constitutional authority in relation to the military has absolutely no bearing on matters that apply to population as a whole.

      2. Stuart’s testimony with regard to mandates specifically suggested “soft” mandates whereby the individual is highly encouraged to behave in a certain way in order to take advantage of some sort of tax benefit. There is no reference one way or the other to the constitutionality of a “hard” mandate in that testimony, just an inference that it would not be a good way to go about achieving a desired result with respect to health insurance. The testimony further suggests a heavy dose of state experimentation in programs to find out what, if anything, works. So far Tennessee and Massachusetts are not working out so good.

      3. To my knowledge no informed conservative is suggesting that subsidies or some other way of helping those that just can’t help themselves is not the right thing to do. Contrary to what you may have heard conservatives do not toss widows and orphans out of second story windows into the snow on Christmas eve just for kicks. We actually care about helping folks that need help. 2400 pages of legislation and trillions more dollars of debt is not the way to do that.

      4. Heritage Foundation is not the GOP. Conservatives are not the GOP. Individuals involved in Tea Party groups are on average probably have a much better grasp on the content and meaning of U.S. Constitution than the Chairman of the House Judiciary Committee, a lawyer (not sure how that happened), who thinks the government has the authority to mandate purchase of insurance under the “good and welfare” clause. Just in case you missed it there is no such thing as a “good and welfare” clause.

    10. Zack says:

      yup and the iraq war was constitutional right? both bush tax cuts were constitutional right? i was mandated to live with another 2.5 trillion in a public debt increase due to the tax cuts- so that’s constitutional? read the commerce clause or just look at the tax payer cost for people with no insurance. urgent care…? a mandate is personal responsibility, otherwise my tax dollars will pay for you to go to urgent care. read the bill. its 95 bucks the first year! cry me a river. heck, this website should be un constitutional for the constant lies, lies, lies….!

    11. Rich Stewart, Carlis says:

      Zack, Zack, Zack,

      Not sure which constitution you are reading but Article 1 Section 8 – Congress declares war – the Iraq war was authorized by Congress and funding was and still is approved by Congress.

      Cutting taxes is not a Constitutional matter. The Constitution does not "require" any specific taxes therefor reducing the rate of a previously legislated tax that has not been determined to have been unconstitutional in the first place cannot be unconstitutional. Deficits are the result of drunk and disorderly Congressmen authorizing spending in an amount in excess of tax revenues. Further aggravated by unsustainable levels of entitlement spending. Legislative branch originates bills authorizing the increase in the debt ceiling… Executive branch can veto but that's about it.

      Commerce clause has nothing to do with whether or not one does or does not have insurance

      An individual's agreement or disagreement with the "wisdom" of a policy or a piece of legislation has nothing to do with whether or not either of them is or is not constitutional. What is constitutional is your right to make such comments regardless of whether or not you have the slightest clue about the subject.

      I hope these clarifications ease your mind a bit. You really need to get grip or you will be in need of urgent care for a self inflicted nervous disorder.

    12. Pockets64, Virginia says:

      Zack! Dude! Iraq is Constitutionally provided for under the "common defense" clause. Also, the tax cuts didn't hurt us, it was the Democrat and Republican Congresses that spent like drunken sailors that caused the debt run-up.

      Even with that, the total debt of the previous administration's entire 8 years has already been eclipsed by one year of the current.

      Saying, "Well, the other guy spent a lot of money" is no justification for what is happening now.

    13. Zack says:

      hey "dude", if the war is under the common defense clause then healthcare-(a good/service)/(or provide for the wellfare of the people) is under the commerce clause -they are both in the constitution "dude"

      the tax cuts didnt hurt us? really? they will add 2.5 trillion to the national debt by 2016. and what good have they done?…anything, tell me just one thing? look the the federal income tax reductions from 2003-2010 up until expiration for 95% of the country compared to the highest income earners.- its not even close! we didn't get tax cuts. maybe you make 250,000- 500,000+ and if so good for you. and all the recepients from both bush tax cuts will now pay their fair share for the the healthcare bill as they should.

      bush and the (republican/conservative led congress added 5.5 trillion to the national debt. another 500 billion for private militry contracts in "operation iraqi freedom" so 8.5 trillion dollars… "dude"

      you wrote- "Even with that, the total debt of the previous administration’s entire 8 years has already been eclipsed by one year of the current".. really? so obama has spent over 8.5 trillion dollars in 2009? wow, that sure is something. pardon my sarcasm but seriously dude! are you kidding around?

      bush the the republican led senate. remember that. (republican led senate) added 1.7 trillion in 2008 then obama and the democratic congress added 1.5 trillion to the national debt in 2009. remember that over 93% of all bills under democratic sponsorship in the house were blocked by republicans or vetoed by president bush from (2006-2008)-opencongress.org. votesmart.org, so go use the typical talking point…but, but, democrats had the house when the numbers prove this was the republcian congress all the way up until 2008. . so bush added more in his last year then obama did in his first. go to treasurydirect.com- hopefully heritage will post this comment. and just so you know- as much as conservatives demonize everything and anything, like the cbo, i suggest not demonizing treasurydirect.com because it is an accurate source. or ha, anyone can just take a picture of the national debt clock in nyc from jan. 2001-jan 2009.

      and i will justify blaming the other administration, conservative and republican policies. tax cuts did not and will not work. deregulation doesn't work. the trickle down theory is a theory in itself. and how does adding 2.5 trillion dollars to the national debt work for you?

      i cant blame you. i blame websites like this.- the worst information and debt graphs and charts i have every seen, that are so flawed i dont know where to begin. "dude", its like rasmussen- the most accurate polling system???….thehe. -thats always a good one to hear..

      look when you dont tax you increase debt. when you pass programs that dont work, you increase the debt. we will pay for the mistakes of the previous administration, republican and conservative policies for a long time, as we are paying for them now. yea, healthcare reform is alot of money and it will add to the defecit and taxes will go up(for high income earners) but at least im realistic.

      go study and research. infact, everyone on this website that is a claimed "conservative" really really really needs to do some non-partisan research. k bye bye now!

    14. Billie says:

      Zack, where have you been? What years are you talking about? Devilcrats led the senate since 2006. and obama was in it!

    15. cce says:

      July 20, 1990

      "The second central element in the Heritage proposal is a two-way commitment between government and citizen. Under this social contract, the federal government would agree to make it financially possible, through refundable tax benefits or in some cases by providing access to public-sector health programs, for every American family to purchase at least a basic package of medical care, including catastrophic insurance. In return, government would require, by law every head of household to acquire at least a basic health plan for his or her family."


    16. Zack says:

      republicans had the senate majority from 2006-2008 as im sure most conservatives or republicans would like to forget. votesmart.org. and 93% of all legislation passed from the 110th was republican sponsorship. democrats had the house, not the senate. let me repeat that…democrats had the house, not the senate. thats the great thing about conservatives- i post stone cold facts(with sources to match exactly what i wrote) about just how much of a failure republican/conservative policies were and the response is "where have you been".

      look, if you want to be a party or anything of substance you really really really need to start doing individual research.

      but yet again, i cant blame you. im used to it.

      ps. someone refute republican/conservative/bush national debt increase over 8 trillion dollars, i dare you

    17. Rich Stewart, Carlis says:


      A percentage of votes taken or numbers of items of legislation passed between 2006-2008 may or may not be a an accurate piece of data. Data without context is not information, information without context is not knowledge.

      Railing about Bush and who was in which legislative body is neither research nor presentation of fact as you assert. If you are going to do research concerning the miserable situation with regard to deficits and budgets you need to start back in or about at least 1962 if not earlier and work your way forward. That would mark the beginning of the majority of the entitlement programs that are driving the deficit and represent the bow wave about to swamp the boat.

      As for the subprime mess, which is a major driver of the problem, its roots begin in the Carter administration with the affordable housing notion that was not based on fact. That program muddled along until the Clinton administration when it was put on steroids by changes in the legislation, pushing Fannie Mae into a subprime mortgage buying, bundling, and moving into the derivative market the government in effect created. That alone may not have been enough to drive the supprime market into overdrive but a well intentioned regulation called the "recourse rule" that had been in planning for some time was enacted by the Federal Reserve in 2001. What that did was make it so much more profitable for a bank to hold mortgage backed bonds issued by Fannie and Freddie than it was for them to have mortgage loans and commercial loans in their portfolios. Of course those bonds being issued by Fannie and Freddie we now know had at least one dead, rotting, subprime mortgage fish wrapped up in each bundle.

      To make a long story short, government legislation and regulation drove the bus over the cliff… it didn't all start or happen on George Bush's watch.

      And this my friend is the last of my valuable time that I will spend providing you with the benefit of real research. You could do with a little less attitude and a little more experience before you lay claim to being the world's greatest researcher.

    18. Billie says:

      So what do you want, Zack? Liberty or mandates?

    19. Zack says:

      hey Rich, your using the typical conservative talking points. Deregulation caused the recession and the majority of that was brought by bad conservative and republican policies. Once again, less then 10% of entire housing market share was under cra or any other government programs. The cra was great for 30 years until 2003. Deregulation or non-existant regulatory refrom. And if government or cra was the problem why did these programs fiscally sound for over 30 years? Dispute that…please try. Its all under fdic reports. Where are your sources and information?

      "You could do with a little less attitude and a little more experience before you lay claim to being the world’s greatest researcher"- nice claim and I think you could do a little more with providing facts and not the typical talking points blaming carter and clinton and blah blah blah, ive heard it all before. Also, dispute the percentage of loans given under cra or any other government regulation..go ahead. can you?

      And Billie your fiscally conservative leaders "mandated" everyone in this country to pick up another 8.5 trillion in debt. Thanks again.

    20. Zack says:

      Rich, your a dime a dozen. You are the type of person that I would love to debate in front of a large crowd. You tie your facts into heritage and most likely fox news and the weekly standard. Dime a dozen. Yea, i just made an assumption but im willing to bet you do follow all of those conservative/republican media fronts. Did you leave. You provided nothing. Come back and offer something of substance.

    21. Billie says:

      Poor Zack. Easily influenced by the left. If you think Mr. obama's schemes aren't going to directly hurt every human life existing in America, you're a sad sort. He hurts the weak by feeding their weakness while bringing down strength to pay for it. He punishes personal achievement. He bashes success. eliminates FREE THINKING, obviously cause here you are, and he destroys human dignity.

      He is destroying civil law by making whites responsible for the hatred he's influencing. He's shredding civil law as he continues to shred the American Constitution. Simple conclusion, he doesn't believe in freedom, nor the strength of mankind to live free, nor all mankind endowed equally by the Creator. He divides us by skin color and or race. Holding one skin color for punishment and no others responsible or accountable to their own actions. Look at everything he's doing to destroy what the people have built!

    22. Josh G. says:

      So how's all that 'unconstitutional' blather tasting on your lips now, Heritage?

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