“A History Seminar: Obamacare Has Nothing to Do with Seamen Mandate of 1798”

Boonton says:

Nothing in the Constitution says point blank that there’s a difference between Congress passing a law saying you can’t buy X versus a law saying you must buy X. All arguments to the contrary assume that there’s a huge difference in terms of infringing upon liberty and while the former types of laws are ok 90% of the time the latter must be unconstitutional unless you can show some exceptional support for such a law.

The alternative, I think, is more correct. There’s nothing inherently worse about a ‘must buy X’ law versus a ‘can’t buy X’. Infringement on liberty depends entirely on context. For example, consider the case of prohibition which is a ‘can’t buy X’ type of law versus a law saying taxpayers must mail in their tax forms (imagine this is the pre-internet age). The latter law is a ‘mandate’ to buy a stamp since there’s no way to legally get your tax form in if Congress specifically prohibits handing it in by private messenger or in person. But it seems pretty silly to say such a ‘stamp mandate’ is somehow so unusual and so hard on liberty that it’s worse than prohibition….which people felt was so big a deal that they got an amendment to support it.

The Seaman Mandate and militia bill cited then are important not because they are exact analogies to the health bill mandate (or I should say alleged mandate since it’s actually an income tax that pundits just call a mandate). They are important because they demonstrate that early Congresses were not shy about passing mandate type bills. They didn’t see them as requiring exceptional justification or support Constitutionally. Mandates simply turn out to be rare for practical reasons rather than exceptionally high Constitutional barriers.Report