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Rob Natelson (U. Montana; Independence Institute) addresses Akhil Amar’s claims that Obamacare is consistent with the original meaning of the Constitution.

Categories: Commerce Clause, Constitutional History, Health Care, Originalism    

    22 Comments

    1. Widmerpool says:

      Next up: Was the Ptolemaic geocentric view that the Sun revolved around the Earth consistent with the original meaning of the Constitution? Senator Reid remarked that there’s been enough discussion about that and it’s time to move on and address whether the Earth is flat.

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      January 27, 2010, 8:13 am

    2. Snaphappy says:

      The key question – now much disputed – is whether Congress has authority under Supreme Court misinterpretations of the Commerce Power to mandate that citizens (subjects?) purchase health insurance.

      I wonder how he really feels?

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      January 27, 2010, 9:59 am

    3. SuperSkeptic says:

      Natelson:

      The Founders knew that through “sophistry” (their word) one can always claim a spillover effect, so giving the federal government power over anything with significant spillover effects would result in no real constraints on the federal government at all.

      I couldn’t have said it better myself. Actually, that’s exactly what I did say on Jan. 18th (twice) on this blog when we were discussing Jack Balkin’s (another sophist) attempt to apologize for Congress’ current attempted aggrandizement. Is there anyone from Yale who thinks the U.S. Constitution has any limitations?

      Always searching, grasping, clawing for an externality to regulate . . . a sophist will always find one.

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      January 27, 2010, 10:52 am

    5. Allan Walstad says:

      Natelson is spot-on. Thanks.

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      January 27, 2010, 11:50 am

    6. Brian G. says:

      Sure Obamacare is consistent with the original meaning of the Constitution. The Founders understood that having the government as big and as in control of everything was vital to a successful society. As I recall from my public school education, King George III was hated because he did not do enough for his subjects, and had policies that disparately affected women, minorities, and gays. Thomas Paine wrote volumes on it. “Live because of free helathcare or die” (later shortened to fit on a license plate) and “No right to hospitalization without reconciliation” were big mottos behind the Revolution.

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      January 27, 2010, 12:10 pm

    7. fwb says:

      Amar is a fool! And he can’t read or comprehend simple English.

      But then it’s the judges with crystal “balls” who really f–l things up.

      Tiocfaidh ar la!

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      January 27, 2010, 12:12 pm

    8. Mark Buehner says:

      Even Hamilton is spinning in his grave on this one. Suggesting that any of the founders countenanced a federal mandate to buy favored products is absurd. You’d get your teeth knocked out at any pub in Boston for suggesting it. By the looks of the last election maybe you still would.

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      January 27, 2010, 12:23 pm

    9. Joe says:

      Suggesting that any of the founders countenanced a federal mandate to buy favored products is absurd.

      Yes, none would vote, e.g., for a requirement that people in federal militia service would have to buy certain “favored” weaponry. 

      I assume given the last election that pub goers in Boston in 1789 would be fine with the state mandating you buy health care.

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      January 27, 2010, 12:43 pm

    10. Joe says:

      BTW, I was not under the impression that there was something called “Obamacare.” 

      I thought there was a House bill and a Senate bill, not an “Obama” bill as such. But, if we are going to play games here, games that honestly are hard to take seriously, I guess we can pretend otherwise.

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      January 27, 2010, 12:48 pm

    11. Bama 1L says:

      Mark Buehner: Suggesting that any of the founders countenanced a federal mandate to buy favored products is absurd. You’d get your teeth knocked out at any pub in Boston for suggesting it. By the looks of the last election maybe you still would. 

      Yes, Massachusetts jealously reserves that prerogative to the several states.

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      January 27, 2010, 12:49 pm

    12. Recovering Pol says:

      It was amazing to see Amar put his name to the argument that since states can constitutionally require drivers to buy auto liability insurance, the federal government can constitutionally require citizens to buy health insurance. He ought to proof read those ghost-written pieces more carefully.

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      January 27, 2010, 12:54 pm

    13. ShelbyC says:

      So how does the whole living constitution thing work? Do we not know if it’s constitutional or not until the justices decide?

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      January 27, 2010, 1:08 pm

    14. A. Criminal says:

      Here’s why it’s constitutional:

      - The forced purchase of insurance policies will be limited in time (i.e. it ends when you die).
      - The interest in obtaining a “critical mass” of insured persons is a “tailored use” of force.
      - Switzerland, which I’m sure we have some treaties with, requires people to buy insurance, therefore it’s OK here since Switzerland is all Europeany and hence worthy of emulation.

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      January 27, 2010, 1:15 pm

    15. RowerinVA says:

      Objecting to use of the word “Obamacare” is, itself, sophistry. The word is in general use, and is well-understood to mean the health care package that the President supports. Whining about labels that are descriptive, well-understood, and useful, regardless of whether you find them pejorative, just makes you look small. And yes, that does apply equally to whiners on the right.

      More substantively, it’s disappointing to see Amar take positions like this. He’s quite bright but he’s also quite prone to forgetting to test his arguments outside the “progressive” echo chamber before airing them. To his credit, he sometimes does correct his errors. If he writes a response, please link to it.

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      January 27, 2010, 1:35 pm

    16. Dave N. says:

      Rob Natelson has the better argument, IMHO. There are limits in what Congress can do.

      Of course, I always have thought that Natelson would fit right in as a Conspirator — but then again, I may be biased since he was one of my law school professors at Utah.

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      January 27, 2010, 2:03 pm

    17. Tim says:

      Dave N.: I always have thought that Natelson would fit right in as a Conspirator — but then again, I may be biased since he was one of my law school professors at Utah. 

      I have met Natelson as well and I concur with this. He’s a really nice guy, a damn fine historian, and can make one hell of an originalist argument. I’m sure he’d be an excellent Conspirator.

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      January 27, 2010, 2:27 pm

    18. david niehaus says:

      This post brings up an issue that has been bothering me for a while. It is becoming harder and harder to accept arguments made by persons associated with “institutes” and “foundations” that are lobbying for some policy or the other. On the web you have to wade through page after page of hack work and ravings by many groups just to get to the special pleading and propaganda posted by the groups that at least try to make some sense.And even then, you have to run a search to find out what their deal is.
      I have no brief against the group referred to in the post. The criticisms by the author appear plausible and may well be correct. I don’t know enough to make a judgment. But I cannot imagine why anyone my age (58) or older would be interested in states rights or a return to old style federalism, even to put down an overweening federal government. I grew up in the border south and states rights still gives off the stench of beatings, firehoses, bombings and lynchings. You can’t separate a theory from its history. Strong states rights,to my mind, has almost always been associated with oppression and know-nothingism. That does not appear to be the case here. But the author’s criticism is weakened by its association with a policy web site devoted to a govering ideal I find dubious.

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      January 27, 2010, 2:28 pm

    19. Mark Buehner says:

      Yes, none would vote, e.g., for a requirement that people in federal militia service would have to buy certain “favored” weaponry. 

      What’s a ‘federal militia’? Did such a beast exist at the time? There was a Continental Army, and State Militias certainly. But a federal militia? Requiring people to buy certain weapons? I have no doubt that would be a nonstarter circa the late 1700s.

      I assume given the last election that pub goers in Boston in 1789 would be fine with the state mandating you buy health care.

      Sure. Is there some misunderstanding on the difference between states and the federal government here? I seem to recall the distinction of those entities being somewhat important in the drafting of the Constitution...

      I thought there was a House bill and a Senate bill, not an “Obama” bill as such.

      Oh. So assumedly Obama’s bill is out there elsewhere? Where is it? Ohhh..... he didn’t bother to write one and instead allowed Congress to handle the entire process with (at best) a few loose guidelines. So considering Obama decided to allow Pelosi and Reid handle the crafting of his signature policy, wouldn’t it follow that he is responsible for what comes out of it? If I let my 10 year old do my expense reports, wouldn’t you say i’d be responsible for the outcome?

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      January 27, 2010, 3:45 pm

    20. PubliusFL says:

      Mark Buehner: What’s a ‘federal militia’? Did such a beast exist at the time? There was a Continental Army, and State Militias certainly. But a federal militia? 

      Not a federal militia, federal militia service. That is, militia service that is federal. As in the power of Congress “[t]o provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States.”

      Mark Buehner: Requiring people to buy certain weapons? I have no doubt that would be a nonstarter circa the late 1700s. 

      See the Militia Act of 1792:

      That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

      Of course, I think this “individual mandate” has a much closer relationship to an enumerated power of Congress (the one quoted above) than a mandate to purchase health insurance does.

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      January 27, 2010, 4:04 pm

    21. Tweets that mention The Volokh Conspiracy » Blog Archive » Amar v. Natelson on the constitutionality of Obamacare -- Topsy.com says:

      [...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: Amar v. Natelson on the constitutionality of Obamacare: Rob Natelson (U. Montana; Independence Institute) addresse... http://bit.ly/bP0Iwr [...]

      January 27, 2010, 7:23 pm

    22. PubliusFL says:

      Brian G.: As I recall from my public school education, King George III was hated because he did not do enough for his subjects, and had policies that disparately affected women, minorities, and gays. 

      Indeed! One also recalls the Boston Tea Party, where American patriots in the mold of today’s anti-globalization protesters threw shiploads of British non-“Fair Trade” tea into the harbor in protest of the massive tea corporations’ exorbitant profits and failure to pay their overseas workers a living wage. They specifically complained about the unconscionably low and “regressive” taxes levied on the tea as a result of their lack of representation in Parliament. Like today’s residents of the District of Columbia, they longed for such representation in order to be able to jack up taxes enough to put a real dent in “Big Tea’s” immoral windfall profits.

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      January 28, 2010, 12:30 am

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