Originalist Sin
A brilliant article shows that the Founding Fathers not only supported mandates, they passed laws imposing them. Take that, Scalia!
The five conservative justices on the Supreme Court—Thomas, Alito, Scalia, Roberts and Kennedy—cloak themselves in the myth that they are somehow channeling the wisdom and understanding of the Founding Fathers, the original intent that guided the drafting of the Constitution. I believe the premise of their argument is itself suspect: It is not clear to me how much weight should be given to non-textually based intent that is practically impossible to discern more than 200 years later. Most of the issues over which there is constitutional dispute today could not even have been envisioned when the document was drafted.
Even so, it would be an even better response to the conservative wing’s claim of perceived understanding of original intent to be able to refute their claims by showing them to be historically and indisputably wrong. So once again let’s venture into the world of the health care debate. The consensus view is that existing Commerce Clause doctrine clearly authorizes the type of mandate passed in the act—see in particular the affirmance of the statute by ultraconservative Judge Silberman of the D.C. Circuit Court.
Nonetheless, those opposing the bill insist that an individual mandate has never been done and the framers would simply not permit such an encroachment on liberty and freedom.
Some spectacular historical reporting by Professor Einer Elhauge of Harvard Law School in the New Republic thoroughly rebut the argument. He has found three mandate equivalents passed into law by the early Congresses—in which a significant number of founders served—and reports that these bills were signed into law by none other than Presidents George Washington and John Adams. As Founders go, one might consider them pretty senior in the hierarchy. Their acts can probably be relied upon to give us a reasonable idea what the Founders intended to be the scope of congressional and governmental power.
http://www.slate.com/articles/news_and_politics/the_best_policy/2012/04/affordable_care_act_the_supreme_court_and_the_constitution_harvard_law_professor_einer_elhauge_shows_how_the_founding_fathers_supported_mandates_.html?wpisrc=twitter_socialflow
