Wednesday, December 15, 2010

Twisted history - The Foundry: "The use and abuse of the Founders: the individual mandate is still unprecedented and unconstitutional." Quote: "The Second Militia Act of 1792 neither sanctions nor foreshadows the individual mandate in the recently passed health care legislation."

8 comments:

Anonymous said...

That Heritage Foundation Foundry response is a joke. Deducing which 21st-century health care program James Monroe and Aaron Burr "would also have supported" is a job for Bill and Ted and their phone booth. However, what James Monroe and Aaron Burr actually voted on is a matter of legal precedent.

It's kind of how our laws are made. It has a little to do with why they're upheld or overturned. That some of those votes are now incredibly inconvenient to the "founders' intent/limited government" rooters is a shame.

There's this brilliant observation from the column: "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."

Golly, a 1792 law that only took into account white men? There's an outlier. Exactly how many American legal precedents would be wiped out, if this deeply stupid distinction ever came to have legal merit? And why didn't the black and female members of the Second Congress do something to expand the original Act beyond that "narrow sub-section of society"?

Then there's this bit:
"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.”

Well, that settles the burning question of whether the 1792 Militia Act was unconstitutional. (Amusingly, though he stands firm for flintlocks, the writer's case would be better made by arguing that it was.) However, the specific question involving the two laws is whether Congress has ever forced citizens to personally foot the bill for a legal obligation, or whether the health care mandate is indeed "unprecedented." Go away, answer! Go away!

And despite the Foundry's reading, there's nothing in Article 1, Section 8, Clause 16 that expressly authorizes Congress to pass along the cost to white, male citizens. But the Heritage Foundation sees through the text to find it, like the strict constitutional literalists they are.

Is there any doubt that if we were talking about the 2010 Militia Act, the Foundry would be snarling that "To provide for organizing, arming, and disciplining the Militia" means just what it says and no more, and that the government is the agency that must legally "provide" the "arms"?

Appropriately for comedy purposes, the funniest part of the column may be its conclusion: "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." Yes. One should.

Anonymous said...

On a personal note, I'd add that I do have discomfort with the use of the Commerce Clause in this manner... but I don't mistake my own unease and political beliefs for unconstitutionality. The same goes for recent SC decisions such as Kelo v. New London, and Citizens United v. FEC, which I think were rightly decided but will do harm.

The remedy isn't to stomp my feet while I distort and embellish precedent. The remedy is to write new, superceding law, and to elect representatives that will do so.

Eric said...

OK, duly (duelly?) noted.

Bram said...

The question isn't what type of Healthcare the Founders would support (private free-market). It is, what kind of Healthcare won't destroy the foundations of our Republic. If the Supreme Court rules that there are no limits on Congressional power, that they can take whatever property the desire, and force the People into whatever action they deem necessary - then our Republic is dead.
It used to be that Presidents and members of Congress took their oath to protect and uphold the Constitution seriously. Now it's a joke to them. They stomp their feet when it gets in their way.

TRQ said...

Bram: "It used to be that Presidents and members of Congress took their oath to protect and uphold the Constitution seriously."

Date, please?

Bram said...

http://en.wikisource.org/wiki/Cleveland%27s_Veto_of_the_Texas_Seed_Bill

TRQ said...

Would that be the same Grover Cleveland who unconstitutionally sent federal troops to break up the Pullman Strike, at the request of the railroads? The Grover Cleveland who declined to enforce the 15th Amendment?

Well, we'll let the details slide. Our Republic is dead... and has been since March 4, 1897.

Anonymous said...

Yes, that Grover CLeveland. Not the other one.