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Einer Elhauge: If Health Insurance Mandates Are Unconstitutional, Why Did The Founding Fathers Back Them?

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In making the legal case against the individual mandate, challengers have argued that the Founding Fathers would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution's Commerce Clause indicates that Congress cannot mandate commercial purchases... The Founding Fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress--which incidentally included 20 framers--passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That's right, the father of our country had no difficulty imposing a health insurance mandate.

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