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Wednesday, October 19, 2011

The Individual Mandate: As Old as the Nation Itself

The most maligned portion of the Patient Protection and Affordable Care Act (PPACA) is the requirement that all individuals obtain health insurance. Proponents contend that it is essential to ensure the effectiveness of the overall scheme; now that insurance companies can no longer deny coverage based upon illness, absent the individual mandate people will simply wait until they become sick to purchase insurance, thus vitiating the basic principle that allows insurance to be effective. Opponents contend that the government requiring a private individual to purchase anything is historically unprecedented and downright un-American.

Although oft-repeated and infrequently challenged, this assertion is patently false. The truth is that such government mandates are as old as the Republic and in recent times, those on the furthest extremes of the political right have been their most ardent supporters.

Just two years after the constitution became the law of the land, the nation's Second Congress, a body that included influential founders such as Aaron Burr and Rufus King, along with the aptly named James Gunn of Georgia, passed the nation's first individual mandate in 1792. Like the individual mandate at issue in the health care overhaul legislation, Congress passed this early mandate in realization of the fact that the health and safety of all Americans requires individuals relinquishing a modicum of personal freedom for the benefit of themselves and their neighbors. But obviously, the Second Congress did not require Americans to buy health insurance (a product that wouldn't exist as we know it for more than 150 years) but rather, the federal government required Americans to purchase firearms, ammunition, and the essential accessories required for military service.

Congress required that essentially every white male between 18 and 45 years old purchase

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 . . . .

Even today, long past the era of universal and mandatory militia service, government mandates for gun ownership remain. In some of the reddest of red states, areas where the condemning cries of an "oppressive government" are heard loudest, governments have passed laws mandating firearm ownership.

Amidst the outcry over the individual mandate in the heath care overhaul, legislators in South Dakota proposed a law requiring every adult in the state to own a firearm. But unlike the earlier federal law and laws in other parts of the country, South Dakota's legislature did not actually wish to mandate an armed citizenry. Instead, the legislators claimed their doomed-to-fail proposal was a stunt aimed at highlighting what they perceived as the over-reaching of the individual mandate in the federal health care law. The irony, if not hypocrisy, of their action was apparently lost on the South Dakotan legislators. In a misinformed attempt to highlight what they perceived as government overreaching, they actually highlighted how the core of the main argument against the health care law was entirely inconsistent with the nation's history.

In light of this history, even those ideologues who insist that the Constitution's meaning was frozen at the time of the founding would be hard-pressed to contend that the Constitution prohibits the federal government from requiring an individual to purchase anything. That is, of course, unless their constitutional originalism is merely a front for political ideology, which they will casually brush aside when it does not get them to their desired ends.

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