SOURCE: National Review
comments powered by Disqus
Matthew J. Franck: The Founders Loved Mandates? Not So Fast
Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J.
As a legal argument against an act of Congress, “it’s unprecedented” does not carry all that much weight. After all, every first use of a legitimate congressional power was obviously without precedent. And there is, in the nature of things, no reason that such a first instance could not occur many years after the power itself was called into being by the Constitution.
So when the individual mandate to purchase health insurance, now at issue in the Obamacare case before the Supreme Court, is denounced as unprecedented, that’s hardly a slam-dunk argument. It’s just the beginning of one. What one must show is that the unprecedented mandate is also improper — an illegitimate claim of authority under the Constitution. “It’s unprecedented” can add some rhetorical oomph to the more important claim of illegitimacy, since a plausible reason why no earlier Congress attempted such a mandate is that it would have been understood to reach too far.
By the same token, the ability to say “but there is a precedent!” is a kind of Holy Grail for Obamacare’s defenders. Historic enactments that can be analogized to the individual mandate are valuable currency in a legal system that is based on precedent. Better still if these historic acts went unchallenged in their day. And best of all if they date from the generation of the Founders themselves — when the earliest Congresses and presidencies were filled by men who had participated in writing, ratifying, or otherwise arguing about the creation and meaning of the brand-new Constitution.
So Harvard law professor Einer Elhauge must feel mighty pleased with himself for having offered three examples of “mandates” from the first decade of the Constitution’s existence. In a New Republic article, Elhauge sketches these three examples as follows...
comments powered by Disqus
- New documentary explores the legacy of the 5,000 Rosenwald schools set up by a Sears magnate and Booker T. Washington
- Rare silent Native American movie of 1920s attracting a lot of interest
- It happened in Idaho and was the largest massacre of Indians in US history, but where exactly did it take place?
- Junípero Serra’s Missions Destroyed Entire Native Cultures. And Now He’s Going to Be a Saint.
- Isis destruction of Palmyra's Temple of Bel revealed in satellite images
- Two scholars from UT object to the Texas school's decision to remove the statue of Jefferson Davis
- A history professor explains why Americans are so prone to conspiracy theories
- Now Greg Grandin has come out with a study of Henry Kissinger
- Japanese historian upends the familiar narrative of WW 2 by taking a bottom up approach, focusing on fascism from the grassroots
- Holocaust-denying historian David Irving organises 'disgusting' £2,000-a-head holiday tours of former concentration camps and Hitler's HQ so people can 'make up their own mind about the truth'