The Original Individual Mandate, Circa 1792

Revolutionary-war-soldiers  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.

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21 replies »

  1. this story post on the militia act is incorrect. you THE CITIZEN ARE NOT REQUIRED TO ENROLL. it states the captain or commander of your militia company will and enroll you, and will notify that you are enrolled. no action is required of the citizen on enrollment.

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  3. I hate when people like this author think they are so smart and come up with a brilliant example that is absolutely irrelevant to the discussion.

    The militia clause explicitly gives the power to organize and arm militias. Requiring militia participants to bring their own gun (BYOG) was standard practice because a gun is a necessity for being in a militia. There is nothing in the Commerce clause that implies the need to have health insurance to engage in Commerce.

    Perhaps the Congress could use this authority to draft the entire US population into the Army under the power to raise armies?Then they would be covered by the military health care system

  4. Of course, the gun mandate only applied to people who were conscripted, and was necessary because there was no federal income tax for the government to arm those conscripted members of the military. The same law gave the government authority to court martial those who were conscripted if they did not follow orders.

    Has President Obama conscripted all Americans? Are we all now subject to court martial for not following orders?

  5. I guess the 14th Amendment was not ratified. Dred Scott is precedent too!

  6. Does this arguement mean only ‘able bodied white males between the ages of 18 and 45’ are requied to purchase health insurance?

  7. This “ridiculous piece of paper from 1783” has emerged as the premiere protection of human liberty in mankind’s tyrannical history and guided the rise of the greatest nation on Earth. You frankly don’t persuade me to your cause when you belittle it. Indeed, you validate the suspicions expressed by conservative skeptics that those pushing various federal expansions (to include health care reform) have no respect for the U.S. Constitution and its limitations upon central government and seek to have them negated. In short, the common theme in most recent “reforms” seems to be the expansion of the federal government’s role beyond its original narrow scope.
    History has shown that the alternative to a limited government is often an unlimited one. How many historic protections of libery are we set aside based upon the crisis and/or convenience of the moment? If things don’t work out, how do we get these lost liberties back?

  8. Yes, a very interesting tidbit. Thank you for sharing. The Militia Act sets a precedent for a government requiring action on the part of its citizens for the common good. This is similar to the draft and governmental land seizure. Requiring everyone to have health insurance provides a common good from the perspective of limiting the spread of infectious disease from those who currently are uninsured (and, therefore, often lack access to preventive care or treatment) to those who are insured. Thank you for your insight.

  9. I am not at all opposed to precedent. It served us well in the past, all the way to the British Common Law, and it generally provides stability and predictability to the system.
    However Dr. Weinstein’s comment is very pertinent. The militia men were not required to “purchase” anything, and even if they did purchase items, the largest part of those items was non perishable and retained value for its owner, value that could be consequently sold or bartered.
    Unlike muskets, health insurance is not a good that you can bequeath, sell, borrow, steal, make or otherwise trade.
    The individual mandate is a tax. Unfortunately, it does not go far enough, so it’s an ill conceived tax.

  10. Bradley–
    Great post.
    I share Matthew’s skepticism about a legal system based on precedent, but that’s the legal system we have.
    I’m not an attorney, but have read enough constitutional law to think that this might be worth arguing . . . It doesn’t sound any more far-fetched than some other precedents, and in fact, the health of the nation seems to be as important as defense. (When many of us are sick and not receiving the care we need that is bad for the economoy, the society, and each of us as individuals living in unhealthy population. )
    Also thanks for the link to Mark Hall’s work. This week-end I’m working on a reply to the Cato Insitute on the Individual Mandate. I suspect your post and his work will find their way into my reply.

  11. It is interesting that those who have Health Insurance are so eager to deny those who have not.Like being the center of everyones universe it is within your Godly rites to decide who meets such High Standards and who needs to be snuffed out.
    Oh,If Jesus thought the way you do. How many christans would seek confort in the Word?

  12. Ridiculousx3, eh? Sounds like a new band. 😉
    While I appreciate Matt’s position on this issue, I don’t understand how continually insisting that the Constitution is irrelevant strengthens said position or adds to the debate on this issue. Further, it’s unclear to me why this 1792 law is “ridiculous.” Is it because the US wasn’t under possible threat of attack, because male citizens shouldn’t have been required to purchase firearms, or because anything done during that time period (including the advent of fire departments, libraries, and even insurance) was “ridiculous?”

  13. I love it. We need more about ridiculous laws in 1792 to show how ridiculous we are in 2010 to be living lives based on a ridiculous piece of paper from 1783.

  14. The Uniform Militia Act of 1792 did not require the PURCHASE of these items. It required the POSSESSION of these items. You could build/sew/construct/beg/borrow or steal the items. As such, the law is NOT legal precedent requiring the purchase of something. Parsing words perhaps, but that is the nature of law.

  15. Thank you for the thoughtful comments! The answers to some of your questions, particularly those about the history of the Militia Acts, can be found in my (much longer) paper on the topic.
    Professor Mark Hall has also written some excellent articles explaining the constitutional issues involved—sans Militia Acts—and how legal precedent works in constitutional law.

  16. I liked this article but I do not think it will hold up for a few reasons-
    – Author intention- The intention of the Militia acts was to reinforce a national army that will be ready at a moment’s call. National defense is different from health reform law. In 1800s, we were fighting for survival. Domestic reform does not match to the level national defense.
    – National Defense supersedes Domestic Reform- Just like during the times of Lincoln and FDR, the President can supersede some Constitutional elements, but I believe every time this happened it was done by Executive order and not by a act of Congress, because the Supreme Court would of definitely stopped that legislation. (I could be wrong about that though). Anyways, I hardly think any noble judge would put a connection between national defense and healthcare reform
    – Not interstate- You argue that this would require some interstate commerce. I do not think it is as much as you contend. Each town had its own blacksmith and gun shop. I do not think it would be common for people to be crossing state to state to buy arms.
    – Perpetual vs Possibility- The mandate to purchase insurance is continual until you die. This mandate to purchase a arm is a one time provision. Secondly, it is for 18-45 year old men. So it is not for “Everyone” as I believe you purport. Women and Children are excluded. Thirdly, this act was only enforce at the call of the President during national emergency. I believe this Act was for emergency purposes to call up STATE militia for the national defense.
    – Obama Administration wants to call it a tax- in court, the Administration has taken the course of a tax to avoid problems with the Commerce clause. So they obviously gave up on trying to sneak this through as a purchasing a item. Who knew that the budget process in Washington would be use to change the fabric of the country?
    – Militia Acts are inactive and outdated- I am not sure this would be considered cutting edge law arguments, haha.
    Great post! Actually original material that you wont find anywhere else!

  17. Thanks for this little nugget of his history: I always love learning something new about the past. Most every controversy or revolutionary concept has been done before, just under different trappings, and it’s good to take time away from the hysteria to think about how things were done before, what problems they caused, and what solutions we might consider now in the present and for the future.
    I’m not familiar with the circumstances of this law, so I can’t compare it with the PPACA (what an acronym!) with confidence. This Militia Act certainly seems to fall under the whole “provide for the common defense, promote the general Welfare,” idea, and I can see where a new nation would feel it had to be in constant readiness lest a new attack should come (as indeed we did fight with the British again in 1812). I wonder, did this law apply to all citizens equally or did it only apply to those living in states (as opposed to territories)?
    At any rate, with only this limited summation to guide me, the argument that I could see being made against the author’s position is that the purchase of the items named is a one-time expense, with a limited potential of use (just as draft registration does not guarantee military service). Conversely, health insurance is an ongoing expense, with monthly premiums and a likely possibility of multiple uses. The militia man is entering into a limited contract with the private entity, whereas the insurance recipient is entering into a relationship that will last an entire lifetime.
    I recognize that in this piece you mention the possibility of repurchasing a firearm, and that ammunition is an ongoing expense. As I said, without further research on how this law was enacted, enforced, and why it was eventually replaced with the National Guard, I can’t make a great argument one or the other. Still, it makes for great food for thought.

  18. An interesting stretch … but a stretch nonetheless.Still, whenever anything goes before SCOTUS, you never know.