The Founding Fathers Invented the “Individual Mandate”

I discovered a fascinating article from Adam Winkler, a UCLA law professor, talking about the “Militia Acts” passed in 1792, on George Washington’s watch.

The lawsuits being filed by the states against the reform bill us language that mandate is an “”unprecedented encroachment on the liberty of individuals.” Seems like this is not quite true according to Mr. Winkler:

But the individual mandate is not really so unprecedented. In fact the founding fathers adopted the first “individual mandate” back in 1792. It required individuals to outfit themselves with guns and ammunition, even if they had to buy those items from private sellers.

The mandate was included in a series of laws known as the Militia Acts. Early Americans were were fearful of a standing army so they relied on ordinary citizens organized into state militias to fight off Natives and invading armies. States, however, couldn’t always be counted on to send their militias to help out other states. Comity was an unreliable basis for national security. And ordinary citizens couldn’t always be relied upon to have the equipment they would need to be an effective fighting force.

Congress sought to rectify these problems by passing federal legislation. In the first Militia Act, Congress gave the President authority to call out the militias and imposed penalties on any militiaman who refused to obey orders. In the second Militia Act, Congress included an individual mandate: all free, able-bodied male citizens between the ages of 18 and 45 “shall, within six months… provide himself with a good musket or firelock” or “a good rifle.” All men of age were also ordered to equip themselves with ammunition and “a knapsack” to carry supplies. Many citizens already had these items. Those who didn’t had to go out and buy them, like it or not, presumably from a private seller.

In many ways this individual mandates was much more burdensome than the requirement that individuals buy health insurance. In early America, rural people had little consumable income and many people only used or ate what they themselves made. In cities, many people had no personal need for a military-style firearm. Regardless of the burden, people had to equip themselves, even if they might never have any need to use that equipment.

Since most Republicans and those on the right a more pure “constructionists” who look to the Constitution and its original intent for guidance it seems like an “individual mandate” is clearly there, 218 years ago.

While the times and world are vastly different clearly the framers held that the power to “mandate” was within their realm.

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2 Comments on “The Founding Fathers Invented the “Individual Mandate””

  1. Tammy Wolf Says:

    It is a huge stretch to try to use this 18th century militia legislation to justify the health insurance mandate – or even to try to label it is a precedent:
    1)Financial Burden almost a non-issue v. healthcare costs a big issue. as mentioned in your article, most citizens had “weapons” as a tool for everyday survival. A gun was necessary for protection as well as to provide food, skins for clothing, oil for fuel, etc. And, although the “rural” folk (which most citizens were in those days), might have been “poor” it seems highly unlikely that they were surviving in the wild without a weapon. It is hard to imagine their ability to exist without one in the first place. Also, if you couldn’t buy a weapon, I doubt the government of the day would raise individual taxes to raise money for you to get a free musket. (or, to give you an entitlement to just about anything else as a matter of fact).
    2) Scope of Mandate: It only affected 1/2 the population as it applied to Males exclusively. The coverage mandate applies to all individuals, regardless or age or gender.
    3) Enforcement & its additional cost: Enforcement probably only occurred in the envent an unarmed, ill-equipped militia-man was called to duty. Thousands of government workers were not hired and paid by citizentax increases, fees & penalities to monitor and penalize non-compliant citizens. As a matter of fact, these citizens just won a war of rebellion against a government that they felt over-taxed &/or taxed without representation. I would suspect that the citizen majority not in favor with the Healthcare reform act just passed without their consent might have a similar rebellious bent, especially if their elected “representatives” continue to fail to represent their needs and desires accurately & appropriately.

    • John Nail Says:

      Tammy,
      The precedent also established our national policy for caring for wounded and disabled vets.

      The commerce clause and precedents there are all that is required for any federal action anyway.

      If society at the time was setting all precedent then women still would have no rights, we would have slavery and only property owners could vote.

      You need to focus on tHe real facts. There are no enforcers being hired and the law specifically prohibits the IRS from harassing or enforcement.

      Also public opinion polls do not run any part of any government, elections do. In 2008 Obama and the Dems won a sizable majority based on a platform that had major commitment to healthcare reform.

      The R’s decided to not try and work collaboratively on reform and instead spent a year creating lies, half truths et al to try and create “Waterloo” and lost.

      They did a great job of creating disinformation as your post shows.

      There is much to be improved here but at least we have start.

      PS – why did no R complain or fight the MA law and it’s mandate? Even Scott Brown voted for it and Mitt is a strong Prez candidate.

      B


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