Regardless of one’s opinion on the Patient Protection and Affordable Care Act’s constitutionality, most commentators-and no less an authority than the Congressional Budget Office)-agree (or concede, as the case may be) that Congress has never required Americans to purchase a good or service from a private entity as a condition of citizenship. But, importantly, they are wrong. The ongoing debate over the mandate’s constitutionality has uncovered an unlikely precedent to the PPACA’s individual mandate to possess health coverage. I recently wrote about this overlooked original individual mandate in an article, “The First Individual Mandate: What the Uniform Militia Act of 1792 Tells Us about Fifth Amendment Challenges to Healthcare Reform.”
The Militia Acts of 1792, passed by the Second Congress and signed into law by President Washington, required every able-bodied white male citizen to enroll in his state’s militia and mandated that he “provide himself” with various goods for the common weal:
[E]ach and every free able-bodied white male citizen of the respective States . . . shall severally and respectively be enrolled in the militia . . . .provid[ing] himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein . . . and shall appear so armed, accoutred and provided, when called out to exercise or into service
This was the law of the land until the establishment of the National Guard in 1903. For many American families, compliance meant purchasing-and eventually re-purchasing-multiple muskets from a private party.
This was no small thing. Although anywhere from 40 to 79% of American households owned a firearm of some kind, the Militia Act specifically required a military-grade musket. That particular kind of gun was useful for traditional, line-up-and-shoot 18th century warfare, but clumsy and inaccurate compared to the single-barrel shotguns and rifles Americans were using to hunt game. A new musket, alone, could cost anywhere from $250 to $500 in today’s money. Some congressmen estimated it would cost £20 to completely outfit a man for militia service-about $2,000 today.
Perhaps the most surprising aspect of the militia mandate is how uncontroversial it was. For instance, although the recently-ratified Bill of Rights was certainly fresh on Congress’ mind, not one of militia reform’s many opponents thought to argue the mandate was a government taking of property for public use. Nor did anyone argue it to be contrary to States’ rights under the Tenth Amendment. Rather, the mandate was criticized as an unfair burden upon the poor, who were asked to pay the same amount to arm themselves as the rich. Indeed, the Militia Acts did nothing to defray costs, although a few years later Congress did appropriate funds to pay militia members for the use of their time and goods-in effect subsidizing the purchases.
All this history is potentially important to the health insurance mandate’s upcoming legal challenges, such as those recently filed by the Thomas More Law Center and the citizens of Mississippi. Both lawsuits assert Fifth Amendment-based rights the Supreme Court has, up to this point, never recognized. The Court could change its position on these issues, but only if context permits. These are the situations where historical precedent, or the lack thereof, can make or break a constitutional argument.
For example, one interesting complaint in the Mississippi class action asserts that the plaintiffs “have the constitutional right to be free from entering a private contract or an involuntary association.” The complaint considers such a right as an element of “substantive due process,” a set of constitutionally-protected “fundamental rights” that may not be expressly mentioned in the the Constitution itself, but are read as expressed through the word “Liberty” and are held to be ”deeply rooted in the history and traditions of the United States.” Many healthcare issues fall under the substantive banner. Through this doctrine, for example, the Fifth and Fourteenth Amendment due process guarantees have been read to protect privacy and reproductive choices.
The 1792 mandate directly contradicts the notion that longstanding American values somehow establish a freedom from government-mandated purchases. If such rights truly are deeply rooted in our history and traditions, Americans throughout the several states saw little need for legal recourse: in fact, many states updated their militia laws in the early 19th century specifically to conform with the federal statutory requirements. The Militia Acts’ roots reach back to colonial New England, where it seems Massachusetts lead the way again in 1632 with its own firearm mandate.
The Militia Acts may be less applicable to other constitutional issues. Both of the aforementioned class actions, as well as Florida Attorney General Bill McCollum’s suit, also argue that Congress simply cannot regulate interstate commerce by requiring Americans to participate in it. Of course, the procurement of supplies under the Militia Acts did require Americans to engage in commerce, and, perhaps, Interstate Commerce. But it is not particularly tenable to cite the Commerce Clause as the power under which Congress and President Washington moved. More apt would be the Militia Clause, wherein Congress may “call forth the Militia” coupled with the Necessary and Proper Clause: ”Let the end be legitimate, let it be within the scope of the constitution,” as Justice Marshall famously wrote in McCulloch v. Maryland “and all means which are appropriate, which are plainly adapted to that end . . . are constitutional.” Importantly, McCulloch is still good law (for some idea of the breadth of the Necessary and Proper Clause power, See U.S. v. Comstock, recently decided by the Supreme Court). And yes, the Necessary and Proper Clause may work in tandem with the Commerce Clause.
What is “Necessary and Proper” to the execution of one power (Militia Clause), however, may not be ultimately determined by the Court to be constitutionally so for another (Commerce Clause). But as Constitutional Law Professor Edward Hartnett of Seton Hall Law has pointedly queried, “At least so long as McCulloch v. Maryland is good law, why would the necessary and proper clause in aid of the militia power allow for an individual mandate, while the necessary and proper clause in aid of the commerce power would not?”
Either way, however, it is simply wrong to say that Congress has never required Americans to purchase a good or service from a private entity as a condition of citizenship. In fact, in light of the Militia Acts, the individual mandate to purchase goods or services to protect oneself and one’s neighbors can readily be described as “deeply rooted in the history and traditions of the United States.” The debate needs to be altered to accommodate this history.
As I continue researching the Militia Acts and the militia system, what surprises me most, and what seems most relevant to the current populist arguments against healthcare reform in general, is how invested Americans once were in the idea of personal sacrifice. My favorite quotation comes from James “Left Eye” Jackson, an antifederalist-leaning congressmen who was no friend of the Washington Administration:
“Though it may prove burthensome to some individuals to be obliged to arm themselves, yet it would not be so considered when the advantages were justly estimated . . . . [A]s this nation is rising fast in manufactures, the arts and sciences, and from her fertile soil may expect great affluence, she ought to protect that and her liberties from within herself.”
This post originally appeared on Health Reform Watch. Bradley Latino is a third-year student at Seton Hall Law School. He graduated cum laude from Butler University in 2005, where he majored in literature. He is currently working with the New Jersey Appleseed Public Interest Law Center on an overview of potential conflicts between New Jersey private health insurance regulation and the newly-passed federal law.