Will current Supreme Court overrule Thomas Jefferson?
By LawReader Senior Editor Stan Billingsley Nov. 11, 2011
Opponents of the health care program endorsed by President
Obama, and which is known as “Obama care” is being attacked in the
courts as unconstitutional since it mandates that everyone purchase health
Surely Justice Scalia will examine this law and attempt to apply his legal theory that
the constitution should be viewed through the eyes of our founding
fathers. Perhaps he will be influenced by that fact that a very similar health care law was adopted by Congress in
1798, and that proponents included Thomas Jefferson and John Adams. They signed the U.S. Constitution, and
clearly any consideration of what our founding fathers meant by adoption of the
Interstate Commerce Clause, must note that they used the current constitution
to justify a mandatory health insurance program.
The U.S. Supreme Court will shortly decide if they will review the conflicting
appeallate decisions that uphold Obamacare and those that oppose it on the basis
of a limited view of the Interstate Commerce clause to the U.S. Constitution.
You will find the following comments and historical facts interesting if you are a
student of the law.
Internet Posting By Rick Ungar / January 2011
The ink was barely dry on the PPACA (Obamacare) when the first of many lawsuits to
block the mandated health insurance provisions of the law was filed in a
Florida District Court.
The pleadings, in part, read -
The Constitution nowhere authorizes the United States to mandate, either directly
or under threat of penalty, that all citizens and legal residents have
qualifying health care coverage.
State of Florida, et al. vs. HHS
It turns out, the Founding Fathers would beg to disagree.
In July of 1798, Congress passed – and President John Adams signed - “An Act for the
Relief of Sick and Disabled Seamen.” The law authorized the creation of a
government operated marine hospital service and mandated that privately employed
sailors be required to purchase health care insurance.
Keep in mind that the 5th Congress did not really need to struggle over the intentions
of the drafters of the Constitutions in creating this Act as many of its
members were the drafters of the Constitution.
And when the Bill came to the desk of President John Adams for signature, I think it’s
safe to assume that the man in that chair had a pretty good grasp on what the
framers had in mind.
Here’s how it happened.
During the early years of our union, the nation’s leaders realized that foreign trade
would be essential to the young country’s ability to create a viable economy.
To make it work, they relied on the nation’s private
merchant ships – and the sailors that made them go – to be the instruments of
The problem was that a merchant mariner’s job was a difficult and dangerous
undertaking in those days. Sailors were constantly hurting themselves, picking
up weird tropical diseases, etc.
The troublesome reductions in manpower caused by back strains, twisted ankles and
strange diseases often left a ship’s captain without enough sailors to get
underway – a problem both bad for business and a strain on the nation’s
Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798
Page 2 of 4
But those were the
days when members of Congress still used their collective heads to solve
problems – not create them.
Realizing that a
healthy maritime workforce was essential to the ability of our private merchant
ships to engage in foreign trade, Congress and the President resolved to do
something about it.
Enter “An Act for The Relief of Sick and
I encourage you to
read the law as, in those days, legislation was short, to the point and fairly
easy to understand.
The law did a number
of fascinating things.
First, it created the
Marine Hospital Service, a series of hospitals built and operated by the
federal government to treat injured and ailing privately employed sailors. This
government provided healthcare service was to be paid for by a mandatory tax on
the maritime sailors (a little more than 1% of a sailor’s wages), the same to
be withheld from a sailor’s pay and turned over to the government by the ship’s
owner. The payment of this tax for health care was not optional. If a sailor
wanted to work, he had to pay up.
This is pretty much
how it works today in the European nations that conduct socialized medical
programs for its citizens – although 1% of wages doesn’t quite cut it any
The law was not only
the first time the United States created a socialized medical program (The Marine
Hospital Service) but was also the first to mandate that privately employed
citizens be legally required to make payments to pay for health care services.
Upon passage of the
law, ships were no longer permitted to sail in and out of our ports if the health
care tax had not been collected by the ship owners and paid over to the
government – thus the creation of the first payroll tax in our nation’s
When a sick or injured
sailor needed medical assistance, the government would confirm that his payments
had been collected and turned over by his employer and would then give the
sailor a voucher entitling him to admission to the hospital where he would be
treated for whatever ailed him.
While a few of the
healthcare facilities accepting the government voucher were privately operated,
the majority of the treatment was given out at the federal maritime hospitals
that were built and operated by the government in the nation’s largest ports.
As the nation grew and
expanded, the system was also expanded to cover sailors working the private
vessels sailing the Mississippi and Ohio rivers.
The program eventually
became the Public Health Service, a government operated health service that
exists to this day under the supervision of the Surgeon General.
So much for
the claim that “The
Constitution nowhere authorizes the United States to mandate, either directly
or under threat of penalty….”
Congress’ understanding of the limits of the Constitution at the time the Act
was passed, it is worth noting that Thomas Jefferson was the President of the
Senate during the 5th Congress while Jonathan Dayton, the youngest
man to sign the United States Constitution, was the Speaker of the House.
sure a number of readers are scratching their heads in the effort to find the
distinction between the circumstances of 1798 and today, I think you’ll find it
law at that time required only merchant sailors to purchase health care
coverage. Thus, one could argue that nobody was forcing anyone to become a
merchant sailor and, therefore, they were not required to purchase health care
coverage unless they chose to pursue a career at sea.
this is no different than what we are looking at today.
Each of us
has the option to turn down employment that would require us to purchase
private health insurance under the health care reform law.
be practical? Of course not – just as it would have been impractical for a man
seeking employment as a merchant sailor in 1798 to turn down a job on a ship because
he would be required by law to purchase health care coverage.
more, a constitutional challenge to the legality of mandated health care cannot
exist based on the number
of people who are required to purchase the coverage – it must necessarily be
based on whether any
American can be so required.
the nation’s founders serving in the 5th Congress, and there were many of them,
believed that mandated health insurance coverage was permitted within the
limits established by our Constitution.
to the story is that the political right-wing has to stop pretending they have
the blessings of the Founding Fathers as their excuse to oppose whatever this
president has to offer.
makes it abundantly clear that they do not.
UPDATE: January 21- Given
the conversation and controversy this piece has engendered, Greg Sargent over
at The Washington Post put the piece to the test. You might be interested in
what Greg discovered in his article, “Newsflash: Founders
favored government run health care.”
Rick at email@example.com
favored “government run health care”
By Greg Sargent
Forbes writer Rick Ungar is getting some attention for a piece arguing that history shows that John Adams supported a
strong Federal role in health care. Ungar argues that Adams even championed an
early measure utilizing the concept behind the individual mandate, which Tea
Partyers say is unconsittutional.
I just ran this theory past a professor of
history who specializes in the early republic, and he said there’s actually
something to it. Short version: There’s no proof from the historical record
that Adams would have backed the idea behind the individual mandate in
particular. But it is fair to conclude, the professor says, that the
founding generation supported the basic idea of government run health care, and
the use of mandatory taxation to pay for it.
Here’s the background. Ungar points out that in
July of 1798, Congress passed “An Act for the Relief of Sick and Disabled
Seaman,” which was signed by President Adams. That law authorized the
creation of a government operated system of marine hospitals and mandated that
laboring merchant marine sailors pay a tax to support it.
Ungar argues that this blows away the argument
made by many opponents of the individual mandate: That it’s unconstitutional to
mandate that all citizens purchase health coverage, or that this violates the
founding fathers’ view of the proper role of government.
Is this true? In some ways it is, according to
Adam Rothman, an associated professor of history at Georgetown University. He
argues that it’s a “bit of a leap” to compare the 1798 act directly
to the individual mandate, because the act taxed sailors to pay for their
health care, rather than “requiring that sailors purchase it.”
But Rothman says that it’s perfectly legit to
see shades of today’s debate in that early initiative.
“It’s a good example that the
post-revolutionary generation clearly thought that the national government had
a role in subsidizing health care,” Rothman says. “That in itself is
pretty remarkable and a strong refutation of the basic principles that some Tea
Party types offer.”
“You could argue that it’s precedent for
government run health care,” Rothman continues. “This defies a lot of
stereotypes about limited government in the early republic.”
Also: Some have argued that the individual
mandate is, in effect a tax, but one that cuts out the Federal
government as middleman. In this reading, everyone will eventually participate
in the health system anyway, and the mandate means the Federal government is
merely directing people to buy insurance, rather than collecting a tax and
using that money to purchase that same insurance for them.
We will never know whether the founding
generation would have agreed with this concept or not. They didn’t agree on
much even among themselves. But in Rothman’s view, they are already on record
supporting government run health care, financed by mandatory taxation. So
UPDATE, 3:29 p.m.: To be clear, the system of government-run
hospitals was established for laboring merchant marine sailors, whose very
dangerous work in trade was crucial to the young republic. The history is right here. I’ve edited the above to clarify.