If Fox News and Antonin Scalia were around in 1792 when James Madison and George Washington helped push through the Militia Acts requiring citizens to buy muskets and other military supplies, those Founders likely would have heard complaints like: "What else will the federal government do? Make us buy broccoli?"
Okay, broccoli wasn't really grown in the United States at the time, arriving in the next century with waves of Italian immigrants. But the distinction between the founding era and today is illustrative of how the seriousness of American politics has eroded.
In 1792, just four years after ratification of the U.S. Constitution, Madison and Washington -- two key Framers of the document -- saw nothing wrong with mandating Americans to buy certain products in the private market. It was simply a practical way for the government to arm militias to put down insurrections and defend against foreign enemies.
Last week, however, the Republican majority on the U.S. Supreme Court behaved like Fox News pundits, offering goofy hypothetical possibilities about what Congress might mandate if the Affordable Care Act's requirement to buy health insurance stands. We heard lots about required purchases of broccoli, burial insurance, cars, cell phones, etc.
The debate also was influenced by the false assertion that never before in U.S. history had the federal government required Americans to buy a private product. For "originalists" -- like Justice Scalia -- that was particularly important because he claims to believe that only actions reflective of the Framers' original vision can be constitutional.
But here was a stubborn historical fact, that Madison, as a member of the Second Congress, and Washington, as the first President, had supported the Militia Acts of 1792, which gave each able-bodied white male of fighting age six months to "provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball."
Yes, I know that the law was passed under Article Two Powers of the Executive, which makes the President the Commander in Chief of the military, not Article One's Commerce Clause, which grants Congress unrestricted power to regulate interstate commerce. But the principle is the same, that the government can order Americans to buy something that Congress deemed necessary for the country's good.
So Long Ago
I'm also aware that the musket precedent is dismissed by some because it was so long ago. But that should be exactly the point when Scalia and the other Republican justices are weighing the constitutionality of the health insurance mandate.
If mandates were okay for Madison, the Constitution's architect, and Washington, who presided at the Constitutional Convention, then that should be determinative on the question of whether mandates passed constitutional muster with the Framers. Madison and Washington -- along with other men in the Second Congress and inside Washington's administration -- were, like, the actual Framers.
The fact that the musket mandate was approved just four years after the Constitution's ratification should count even more for the "originalists" like Scalia than if some mandate had been approved later.
Unlike the petty partisans of today, the Framers of the Constitution were mostly pragmatic individuals. Sure, they cared about liberty (at least for white males), but they also were driven by the need to build a strong nation that could maintain its independence against the encroachment of European powers.
That was why Madison proposed the strong Commerce Clause in the first place. He understood that only national action and coordination could enable the United States to marshal its resources properly and fend off Europe's predatory economic tactics.
Madison's Commerce Clause idea even predated the Constitution. He initially proposed giving the federal government control over national commerce when the Articles of Confederation were still governing the country (from 1777 to 1787).
General Washington, who hated the Articles because they had created a weak central government that often left his troops unpaid and unfed, backed Madison's proposal when it was before the Virginia Legislature after the Revolutionary War. In a letter, Washington expressed the need for greater national unity.
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