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.