Tuesday, March 30, 2010

Another federal law with an individual mandate from the early republic (Brad DeLong)

Brad DeLong quotes Randy Barnett, Professor of Legal Theory at Georgetown Law Center and proponent of the so-called "Lost Constitution" (essentially, the pre-New Deal Constitution), making the following claim:
Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law.
Is this claim historically accurate? As we already know, the answer is clearly no. One such example, from 1798, is here.

Now Brad has found an even earlier example, in the Militia Act of 1792:

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, 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; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes. [Etc.]

What makes this example especially telling is that Prof. Barnett, in the piece quoted from earlier, went on to pose the following reductio ad absurdum:
Imagine if Congress ordered the majority of American households without a firearm to buy a handgun from a private company, and punished their failure to do so with an escalating monetary fine, which it labeled a “tax.” Would the supporters of the health insurance mandate feel the same about the constitutionality of such a measure?
Well, we don't have to imagine it. In 1792 Congress "ordered the majority of American households" to do precisely that, and President George Washington signed it into law. QED.

Earlier examples, anyone?

--Jeff Weintraub

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