The Individual Mandate And America’s Ongoing Debate Over The Role Of Government

The battle over the individual mandate is really just nothing more than the latest round in a batter that has been ongoing for 221 years.

Doug Mataconis · · 31 comments

The conflict over the Afforable Care Act’s individual insurance mandate, which played itself out most recently in the decision issued by Judge Henry Hudson is really just the latest round in a battle that stretches back to the beginning of the Republic itself:

“We are against forcing all citizens, regardless of need, into a compulsory government program,” said one prominent critic of the new health care law. It is socialized medicine, he argued. If it stands, he said, “one of these days, you and I are going to spend our sunset years telling our children, and our children’s children, what it once was like in America when men were free.” The health care law in question was Medicare, and the critic was Ronald Reagan. He made the leap from actor to political activist, almost 50 years ago, in part by opposing government-run health insurance for the elderly. Today, the supposed threat to free enterprise is a law that’s broader, if less radical, than Medicare: the bill Congress passed this year to create a system of privately run health insurance for everyone. On Monday, a federal judge ruled part of the law to be unconstitutional, and the Supreme Court will probably need to settle the matter in the end. We’ve lived through a version of this story before, and not just with Medicare. Nearly every time this country has expanded its social safety net or tried to guarantee civil rights, passionate opposition has followed. The opposition stems from the tension between two competing traditions in the American economy. One is the laissez-faire tradition that celebrates individuality and risk-taking. The other is the progressive tradition that says people have a right to a minimum standard of living — time off from work, education and the like. Both traditions have been crucial to creating the most prosperous economy and the largest middle class the world has ever known. Laissez-faire conservatism has helped make the United States a nation of entrepreneurs, while progressivism has helped make prosperity a mass-market phenomenon. Yet the two traditions have never quite reconciled themselves. In particular, conservatives have often viewed any expansion of government protections as a threat to capitalism.

In many respects, it’s a debate that started more than 200 years ago around George Washington’s first cabinet table as Thomas Jefferson and Alexander Hamilton squared off in debates over the proper role of the new Federal Government. Though he was not involved int he 1787 Convention, Jefferson quickly became an advocate of what we would today call a strict constructionist, most importantly with respect to the limited power that had been granted to the Federal Government. Hamilton, on the other hand, believed in a strong and energetic central government. He believed that Congressional power was not necessarily limited to the powers expressly stated in Article I, Section 8 of the Constitution, which was an interesting change for him since he had argued along with Madison and Jay in The Federalist Papers that the Constitution created a government of strictly limited powers.

The history of the Hamiltonian-Jeffersonian debate, and the history of the early years of the Republic, tends to put the lie to the simplistic view that America prior to 1914 or 1932 was a paradise of laissez-faire government and strict adherence by the Federal Government to confines of the Constitution. In 1791, for example, President Washington proposed on Hamilton’s recommendation the creation of what ultimately became the First Bank Of The United States. Jefferson and his allies in the cabinet objected to the bill on the ground that there is no authority granted in the Constitution for Congress to charter a bank. Hamilton and his allies argued that the powers of Congress expanded beyond the mere specific grants of authority in the Constitution and included “attainment of the ends…which are not precluded by restrictions & exceptions specified in the constitution.” Washington sided with Hamilton, the Bank bill passed through Congress easily, and within the first two years of the new government’s existence the strict constructionist view of the Constitution had suffered a significant, some might say intellectually fatal, defeat.

When the re-chartering of the Bank of the United States finally made it’s way to the Supreme Court in 1819, the Court essentially adopted Hamiton’s view and utilized the Necessary and Proper Clause to expand the powers of Congress beyond those strictly set forth in Section 8:

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

Similarly, with respect to the Commerce Clause, which plays a central role in the debate over the individual mandate, the seeds for the massive expansion of Federal power were laid very early in America’s history. In 1824, the Supreme Court defined Congressional power under this clause as:

The power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution………….0The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.

So, within thirty-five years after the first government elected under the Constitution took office, the ground work had been laid for the massive expansion of the power of Congress. All that was necessary were the right circumstances, and when the Progressive Era and Great Depression came around, those circumstances came around. Even before then, though, the Federal Government often acted outside the strict confines of the Constitution. Thomas Jefferson acquired 828,000 square miles of land from France without a specific grant of authority to do so, for example. And much of the history of the government before the Civil War included efforts to obtain benefits for private industry in the name of economic expansion. The point is that the idea of a government that lives only with the strictly construed confines of Article I, Section 8 is something that has only really existed on paper, it has never really existed in the history of the United States.

This didn’t happen because of some vast Wilsonian conspiracy as the Glenn Becks of the world might postulate. It happened, mostly, because the American people wanted it to happen. The New Deal, the Great Society, yes even ObamaCare all passed with substantial public support, or with a demand from the public that the government do something about a problem. Concerns about Constitutional limitations rarely enter the public mind and, when they do, they’re often informed by a view of the Constitution and history that has little to do with reality. More importantly, when the public wants something arguments that the government can’t do it are rarely persuasive. It all brings to mind this story:

At the close of the Constitutional Convention, a woman asked Benjamin Franklin what type of government the Constitution was bringing into existence. Franklin replied, “A republic, if you can keep it.”

That is really the place we find ourselves in today. We have a massive Federal Government that clearly does more than just act within the strict confines of the Constitution mostly because that’s what the American people wanted. In that sense, Alexander Hamilton has, for the moment, won the debate that started in a cabinet meeting in New York in 1789. The debate will go on, however, as it has from the beginning.