Saturday, April 21, 2012

Einer Elhauge Responds to His Critics on The Founding Fathers and Individual Mandates

Earlier this week we posted on Einer Elhauge's New Republic article showing that the so-called "founding fathers" favored a type of "individual mandate."  The post drew some good conversation on our Facebook page.

Elhauge's piece received a healthy dose of criticism, including a post from constitutional scholar Philip Hamburger.  Elhauge responds to that criticism here.  A taste:

Even if you do believe that these early mandates were justified under clauses other than the Commerce Clause, they demonstrate that the framers clearly thought purchase mandates were a “proper” means of executing constitutional powers. That’s enough to show that the framers would hardly have been horrified at the notion of mandating purchases—and enough to validate the Obamacare mandate under the Necessary and Proper Clause.

As I have argued elsewhere, and will be arguing in a forthcoming book on historical thinking, attempts to apply the beliefs of the founding fathers to contemporary political debates is wrought with difficulty.  Nevertheless, it does seem clear that the founders did "mandate" certain forms of insurance and health care.  I will let the constitutional scholars and lawyers decide what that means for Obamacare.


Tom Van Dyke said...

If there's one area where trying to get into the heads of the Founders is proper [necessary!], it's constitutional law.

Randy Barnett replies to Elhauge's reply on behalf of himself and Philip Hamburger.
"Given their focus on the militia and the merchant marine, Einer’s historical examples — such as they are — only serve to highlight the fact that, as Justice Kennedy observed during oral argument, allowing Congress this new and unprecedented Commerce Clause power would be to fundamentally change the relationship of the citizen to the federal government."

ZinnSlayer said...

You can justify anything under "necessary and proper." I fail to see how this response by Elhauge answers the charge that the congressional examples do not apply to Obamacare.