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original intent, health care mandates, and federal power over the states

I recently discussed how the "original intent" doctrine of Constitutional interpretation is intellectually bankrupt, leading as it does to contradiction since the intent of the Framers was that their intent not be used as a guide to the document. But it's unlikely that this idea is going to go away soon. So it's perhaps worthwhile -- and definitely interesting, even entertaining -- to take a look at the opinions of the Framers on two issues that currently cause a lot of pettifoggery, health care mandates and "state's rights". When we do, we see that (as usual) the people invoking the names of the Framers the loudest, have got those gentlemen's opinions exactly wrong.

First, health care. Now, I am not a fan of the mandate to purchase health insurance. I think that, without the public option, it's a bad policy. But "bad policy" is not the same as "unconstitutional". Do we have some historical insight into what the Framers might have thought about the federal government messing with the "free market" by mandating that people buy health insurance?

As it happens, we do.

In 1798, Congress passed and President John Adams signed "An Act for the Relief of Sick and Disabled Seamen." This law created a government-funded marine hospital service, funded by money withheld from the pay of privately employed sailors. This Marine Hospital Service eventually evolved into the contemporary Public Health Service.

In other worlds, the federal government gave the "public option" to sailors over 200 years ago.

The Congress that passed this included Speaker of the House Jonathan Dayton, the youngest person to sign the Constitution, and Charles Pinckney, an important Framer who contributed much to the final draft of the Constitution, as well as Abraham Baldwin and John Langdon, signers of the Constitution. And it was signed into law by John Adams, a signer of the Declaration of Independence.

It's mighty hard to argue, then, that the idea of federal health care mandates somehow falls outside the bounds of the original intent of the Founding Fathers regarding Congress's power to regulate commerce and to tax.

Tea Partiers and other modern anti-Federalists often forget something very important about the Constitution: it was the second take at a federal government. The first take, the Articles of Confederation, featured a weak central government, and was an abject failure. In the eyes of the Framers, it would be necessary to take sovereignty away from the States. As James Madison wrote,

It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of Sovereign States....Hence was embraced the alternative of a Government which instead of operating, on the States, should operate without their intervention on the individuals composing them...

The whole idea of the Constitutional Convention was to create a strong central government. How strong? Again, according to Madison,

As to the remark that the States ought to be under the controul of the Genl. Govt. at least as much as they formerly were under the King & B. parliament, it amounts as it stands when taken in its presumable meaning, to nothing more than what actually makes a part of the Constitution; the powers of Congs. being much greater, especially on the great points of taxation & trade than the B. Legislature were ever permitted to exercise...

... cannot be unknown that they represented the strong prejudices in N. Y. agst. the object of the Convention which was among other things to take from that State the important power over its commerce and that they manifested, untill they withdrew from the Convention, the strongest feelings of dissatisfaction agst. the contemplated change in the federal system...

(Emphasis added.)

The "original intent" of James Madison was that the federal government would have more power over commerce and taxation than the British Parliament had had, and would take such power away from the states. Bet you won't hear anyone from the Tea Party quote him on that.

Why was a strong central government needed? Because, said Madison, the State governments sucked: "The necessity of such a Constitution was enforced by the gross and disreputable inequalities which had been prominent in the internal administrations of most of the States."

We might agree or disagree with Madison about the balance of federal versus state power should be or what the text of the Constitution sets them to be, but again the point here is "original intent", and that it was not what the ahistorical majority of the conservative movement claims that it was.



I also wanted to include this quotation from Charles Pinckney (from his "Observations on the Plan of Government Submitted to the Federal Convention, In Philadelphia, on the 28th of May, 1787"). He is here apparently discussing a provision that would have granted Congress veto power over state laws; obviously this was not included. Nor do I say that it should have been -- our topic here is the "original intent" of the Framers, not my own views of what the Constitution says or should be amended to say.

I apprehend the true intention of the States in uniting, is to have a firm national Government, capable of effectually executing its acts, and dispensing its benefits and protection. In it alone can be vested those powers and prerogatives which more particularly distinguish a sovereign State. The members which compose the superintending Government are to be considered merely as parts of a great whole, and only suffered to retain the powers necessary to the administration of their State Systems. The idea which has been so long and falsely entertained of each being a sovereign State, must be given up; for it is absurd to suppose there can be more than one sovereignty within a Government. The States should retain nothing more than that mere local legislation, which, as districts of a general Government, they can exercise more to the benefit of their particular inhabitants, than if it was vested in the Supreme Council; but in every foreign concern, as well as those internal regulations, which respecting the whole ought to be uniform and national, the States must not be suffered to interfere. No act of the Federal Government in pursuance of its constitutional powers ought by any means to be within the control of the State Legislatures; if it is, experience warrants me in asserting, they will assuredly interfere and defeat its operation. That these acts ought not therefore to be within their power must be readily admitted; and if so, what other remedy can be devised than the one I have mentioned?...Under the British Government, notwithstanding we early and warmly resisted their other attacks, no objection was ever made to the negative of the King. As a part of his Government it was considered proper. Are we now less a part of the Federal Government than we were then of the British? Shall we place less confidence in men appointed by ourselves, and subject to our recall, than we did in their executive? I hope not. Whatever views we may have of the importance or retained sovereignty of the States, be assured they are visionary and unfounded, and that their true interests consist in concentring as much as possible, the force and resources of the Union in one superintending Government, where alone they can be exercised with effect.

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