Left-liberals have been arguing that the 1798 Act for the Relief of Sick and Disabled Seamen, which none of them knew about until well after Obama’s health-care bill passed, makes Obama’s bill constitutional. Touching as this sudden constitutional scrupulosity may be, the 1798 act proves no such thing. Rob Natelson sent me a note to this effect that he has permitted me to share on this blog. (Prof. Natelson, formerly of the University of Montana Law School, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Colorado.) What follows is in addition to the more fundamental point that the mere fact that something has been done once is no proof of its constitutionality; such a principle would require us to endorse all manner of enormities.



As you have reported in your weblog, some “progressive” commentators have argued that 1 Stat. 605 [the Act for Sick and Disabled Seamen] was adopted pursuant to the Constitution’s General Welfare Clause, and they have cited it as a constitutional precedent for Medicaid and for the Patient Protection and Affordable Care Act.

As you have pointed out, however, the measure was not passed until nearly a decade after the ratification of the Constitution. This renders it only weak evidence, if it is evidence at all, of the understanding at the ratification. (See my book, The Original Constitution: What It Actually Said and Meant, p. 40, for a discussion of the appropriate time limits for evidence of original understanding.)

More importantly, though, the “progressives” appear to be sadly mistaken as to the constitutional basis for the law. The historical record makes it clear that it was not adopted under the General Welfare Clause, but was considered a constitutional regulation of foreign commerce precisely because it targeted directly workers involved in navigation.

There are several bases for this conclusion:

First, at the time of the Founding the legal term “regulate commerce” was defined to include the regulation of navigation. See Robert G. Natelson, The Legal Meaning of “Commerce” in the Commerce Clause, 80 St. John’s L. Rev. 789 (2006) (collecting over 500 uses of the term “commerce” in prior and contemporaneous legal materials). That is why Chief Justice John Marshall could write in Gibbons v. Ogden that “all America is united in that construction which comprehends navigation in the word commerce” and why he included regulation of mariners and merchantmen within that term.

Second, in congressional debate the bill’s advocates compared the measure to an act of Parliament for British sailors dating from the reign of Charles II. That program was discussed—and approved—by James Otis, one of the most famous pre-revolutionary American advocates, in his highly influential pamphlet, The Rights of the British Colonists Asserted and Proved. Otis, like other colonial pamphleteers, laid heavy emphasis on the distinction between British exactions for revenue (taxes), which they rejected, and British impositions for the regulation of inter-colonial trade, which they accepted. Thus, Otis’ acceptance of the British mariners’ law strongly suggests that he and his contemporaries considered such measures to be no more than regulation of navigation, and therefore of commerce.

Third, in congressional debate the exaction was discussed as offsetting or complementing bounties on fishing and the duty on salt—quintessential “regulations of commerce” as the term was used then.

Fourth, although the word “tax” appeared in earlier drafts of 1 Stat. 605, the word was removed before passage.

Fifth, as a check-off from mariners’ pay, the program was analogous to other self-funded regulations of commerce, such as fees imposed for the funding of inspection laws (cf. U.S. Const. Art. I, Section 10, Clause 2).

Sixth: The only constitutional opposition to the act in Congress arose to earlier bill drafts, when the exaction was still referred to as a tax. The ground of opposition was that might be an unconstitutional unapportioned direct tax. The lack of other constitutional objections (it passed overwhelmingly), coupled with its precedent in the British Empire, suggests a consensus that 1 Stat. 605 was authorized as a regulation of foreign commerce.

Seventh: The foregoing is strengthen by the historical context of the bill: It was adopted during the Napoleonic Wars, when the U.S. was trying to protect our shipping from measures taken against it by France and Britain and when there were increased risks to American seamen. Again, this suggests that it was a measure passed under the Commerce Power in facilitation of navigation.

Obviously, therefore, 1 Stat. 605 is not a serious precedent for modern federal health care programs, which are supported by taxes and go far beyond serving people directly involved in navigation.