The Constitutionality of Mandated Health Insurance Circa 1798

The Constitutionality of Mandated Health Insurance Circa 1798


Rick Ungar digs up an argument ender for the idea that the Founders would never be in favor of mandated health care.

They were…because they passed a VERY similar law in the 6th Congress.

Rick…take it away…

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.

So why did they do it? Were they secret socialists? Of course not. But they had a crisis on their hands so they crafted some common sense legislation to address it. And, by the way, it was way more “socialist” than what Obama got passed.

For example…

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.

That’s right…a sailor couldn’t even go to the hospital unless the government knew they had been paid…and the treatment was in government owned facilities…for people employed by private companies…who were required to buy insurance.

Now some will say that this doesn’t say people are required to buy private insurance. That’s right, it doesn’t say that. And if you want to split hairs between private and public insurance, well, we can go there but that again paints the Founders as far more socialist than the current legislation, thus negating the argument we’ve heard time and time again by the Repubs.

  • Simon

    Dude. Seriously? This was raised and debunked a year ago.

  • Tillyosu

    Sigh. This argument has already been raised and dispatched. The Volokh Conspiracy did a nice job. I won’t quote it at length here, but it’s main point is important.

    The Act you reference didn’t require seamen to purchase health insurance, public or private. It taxed those seamen and then used those taxes to provide health care – a power of government that no one is disputing. But that’s not what the individual mandate does. It requires one private citizen to buy a service from another private citizen.

    So, why didn’t the Obama administration just do the same thing? They could have levied a tax on everyone, and then given credits or waivers for people who already had insurance, or who demonstrated financial hardship. In fact, a few on the left have advocated this. The reason is because then the bill would have never passed! And if it did by some miracle pass, Obama and the democrats would have paid a huge political cost. So in order to avoid that cost, they stepped outside of their authority under the Constitution.

    You know, the most important question is not whether Congress has the power to force people to buy something. The most important question is, if it does, where does its power end? This is about more than health insurance or elections or politics…this is about whether the Constitution, and thus the concept of limited government, and thus the concept of government by consent, actually means anything anymore.

    Or, I could be totally wrong. Constitutional scholar and US Representative John Lewis claims the authority for the individual mandate can be found in the “pursuit of happiness” in the preamble.

  • Tillyosu

    Oops! Simon beat me to it by a couple of minutes!

  • Simon

    Tillyosu Says:

    The Act … taxed those seamen and then used those taxes to provide health care – a power of government that no one is disputing.

    I think it might be disputed–I wouldn’t assume that’s correct–but the point is that it’s not a dispute that’s relevant for today’s purposes.

    I was rushed last night, and neglected to add an obvious point. We should notice and reject an assumption made by Rick and Justin: that the 1898 Act was Constitutional and must have been because it was passed by the founding generation. That is incorrect, and demonstrably so. When Congress passed this act, it was also in the middle of passing four laws that we today collectively call the Alien and Sedition Acts: The Naturalization Act, June 18, 1798; the Alien Friends Act, June 25, 1798; the Alien Enemies Act, July 6, 1798; and the Sedition Act, July 14, 1798. Now, are Rick and Justin prepared to contend that two centuries-worth of conlaw that uniformly condemns those acts is wrong, and to buck virtually every commentator by declaring that the alien and sedition acts were constitutional after all? If not, their argument for the force of the contemporaneous Sick Seamen Act wilts.

    I am not saying that the act was unconstitutional; I haven’t evaluated it. What I am saying is that its mere existence would not prove anything (even if Kopel was wrong and the act were on-point), for then as now, there were wilfull men happy to ignore the Constitution when it proved inconvenient.

  • Tillyosu

    I think it might be disputed–I wouldn’t assume that’s correct–but the point is that it’s not a dispute that’s relevant for today’s purposes.

    Well, I’m no expert on health care law, but I assume this is the way Medicare operates. But you’re right, whether or not Medicare is constitutional is not relevant. But just to emphasize to readers, I wanted to highlight the specific language of the Act (only relevant parts included):

    [T]he master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen that shall have been employed on board such vessel since she was last entered at any port in the United States, and shall pay, to the said collector, at the rate of twenty cents per month for every seaman so employed ; which sum he is hereby authorized to retain out of the wages of such seamen…

    What does the collector then do with the wages? Let’s continue:

    That it shall be the duty of the several collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the secretary of the treasury ; and the president of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick, or disabled seamen

    So the employer withholds wages, then pays them to a collector, who hands them over to the treasury, who allocates it for seamen health care.

    This sounds exactly like the payroll tax to me. To liken it to the individual mandate, I’d say, is a little less than honest sleight of hand.

  • kranky kritter

    So if we were to instead tax people who don’t have healthcare and then NOT give them healthcare for their money, that would be better?

    Pretty weird argument.

  • Simon

    KK, I think that if you had to build an argument for it, you’d start from the proposition that the Congress’ power to spend money is not symmetrical to its power to regulate. But the creation of new government functions is at the intersection of those two things. Personally, I’m for the judicial enforcement of limits on all of the above, but if you wanted to create a healthcare system with more intervention from FedGov, your best bet is probably to argue that the government can spend the money directly on creating a healthcare system.

  • kranky kritter

    Oh, I understand the logic of it, mechanistically. I’m remarking on the weird place it leads to… .