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.
