March 27, 2012


The Original Individual Mandate, Circa 1792 (BRADLEY LATINO, 7/23/10, NY Times)

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.

Why even pretend the opposition is based on principle? 


Why the Right Turned Its Back on the Individual Mandate: At the heart of the apocalyptic health-care rhetoric is the individual mandate--that not long ago was a conservative idea. (John Avlon  | March 27, 2012, Daily Beast)

The roadmap for what was then the signature Republican approach to health-care reform was provided by the once quintessentially Reaganaut think tank, the Heritage Foundation, which now denounces "the cancer of Obamacare."  The offending document was written in 1989, at the dawn of the first Bush presidency, and its rationale for the individual mandate was as follows:

"There is an implicit contract between households in society, based on the notion that health insurance is not like other forms of insurance protection. If a young man wrecks his Porsche and does not have the foresight to obtain insurance, we may commiserate but society feels no obligation to repair his car. Healthcare is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services - even if that means more prudent citizens end up paying the tab ... A mandate on individuals recognizes this implicit contract."

This is, of course, almost precisely the argument made by both the Obama administration and Governor Romney when he was preparing his signature legislative accomplishment in Massachusetts. Namely, that we have a hole in the social contract, where a lack of individual responsibility causes great financial costs for society as a whole in the realm of health care, which everyone will need at some point in their lives. The solution, reiterated several times by Heritage in policy papers leading up to the fight over Hillarycare, was to put an end to fiscally irresponsible freeloaders by advancing the principle of individual responsibility. By comparison, the Clinton health plan's imposition of a requirement for employers to provide health insurance purchased through HMOs seemed positively socialistic.

In another time, President Obama's adoption of a Republican policy to pass health-care reform could have been characterized as classic Clintonian triangulation, an extension of the dynamic that enabled a Southern Democrat like Lyndon Johnson to pass civil-rights legislation or Nixon to go to China.

But in our polarized era, memory is short and policy consistency often takes a backseat to partisan expediency.

Posted by at March 27, 2012 5:56 PM

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