Campfire Blog

Founding Fathers Did Not Back Health Insurance Mandates

Debunking the latest pro-Obamacare myth

Obamacare supporters are really stretching to find Constitutional support. Like the public defender in My Cousin Vinnie, Solicitor General Donald B. Verrilli stumbled over his words before the Supreme Court as he struggled to find a way to defend President Obama’s signature power grab. And now, liberal scholars are even trying to cite those oft-maligned dead white males, the Founding Fathers, to justify the mandate that every American purchase health insurance.

Einer Elhauge in The New Republic argues that the first Congressses, which included Founding Fathers, passed two “individual mandates.” If true, this means that Obamacare has constitutional precedent.

But both of those “mandates” were either limited or explicitly Constitutionally justified–or not mandates at all. And it doesn’t take three days of umming and awwwing before the Supreme Court to explain.

In 1792, Elhauge writes, Congress required all able-bodied men to buy firearms (Are liberals so attached to Obamacare that they are willing to argue that not only do we have the right to bear arms but the government can require us to buy guns?!).

But this mandate wasn’t based on some expansive reading of the Commerce clause. Article I, Section 8, of the Constitution gives Congress the power:

“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;”

Ordering Americans to purchase firearms to be ready to defend themselves and their nation is pretty essential to arming and organizing a civilian militia. You don’t need any verbal gymnastics to justify that.

Second, Elhauge notes that in 1790 Congress mandated that ship owners purchase medical insurance for their seamen. He claims this is a knockdown justification for Obamacare’s individual mandate.

But seamen were engaged in foreign commerce, thus subject to regulation under the Commerce clause power: a specific industry subject to specific regulation. You don’t have to be in that industry. There is a limiting principle—a principle that even Obama-appointed Justice Sonio Sotomayor said was required to justify Obamacare. There is not a limiting principle to “all Americans must purchase something.”

Obamacare imposes a mandate on Americans as a condition of breathing. What is the government going to tell us? You don’t have to be alive? But for the grace of Government go we?

But there’s more. Congress did not actually mandate that ship owners provide health insurance. They imposed a 20 cent per month tax on seamen’s wages. That revenue was used to fund medical care for seamen. No one was required to buy anything. Congress had the power to impose taxes, not to compel purchases.

In the humble spirit of all those fact checking websites, I declare Einer Elhauge to be “just plain wrong.” Obamacare is an egregious violation of the Constitution, which is maybe why a majority of Americans want it repealed.

Read Einer Elhauge’s attempt to justify Obamacare’s constitutionality here (1.5 pages/670 words).


  1. Teflonron

    Law of the Sea, the Roman law, and international trade are jurisdictions of the Feds. Hence the Seamen mandate would naturally be used.

  2. John from IL

    I read most of the pro-Obamacare myth and I was wondering: “Why only certain seamen?” Reading this and another article helped clarify. Geez these Obamacare supporters are really scraping the bottom of the barrel for Constitutional justifications.

  3. Pete

    Doesn’t really matter. It’s now legally a tax on people who won’t buy insurance and it’s constitutional because the Supreme Court says it is. Even if Elhauge disagrees. BTW, Elhauge has a horse in this race and has written about nothing else in 2 years because he’s obsessed with it.

    • John from IL

      Just because the Supreme Court says so doesn’t make it true. The Supreme Court cannot change truth with what they state. The founders and framers said what they said and meant what they meant, and they were very clear on natural rights. And natural rights are not given by people, or by the judiciary. They are inalienable and present from birth.

      • Joe

        John, isn’t the idea that the Supreme Court has the final authority on constitutionality fundamental to the US government since 1803? If the Supreme Court’s opinion is not the final word, without Congress’ implementation of a new law, then we have chaos.

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