The Founding Fathers and Health Care

Revised version of an article published in The Philadelphia Public Record, March 15, 2012 under the title The Founding Fathers and Health Care

Later this month the Supreme Court will consider the constitutionality of the Affordable Care Act (ACA). There is a narrow question concerning the Commerce Clause and the individual mandate. Most lawyers who have thought about the issue or read the decision of conservative judge Laurence Silberman understand that the mandate is constitutional.

There is also a larger debate about not just the ACA but much else the government does. Contemporary right wingers say that the Federal government has gone far beyond its constitutional limits in regulating, taxing and subsidizing economic activity. Libertarians such as Ron Paul argue that the Founders wanted to create a ā€œlimited governmentā€ that protects our ā€œliberty.ā€ They suppose that by ā€œlimited governmentā€ the Founders meant what libertarians mean today, a government that does little more protect ā€œliberty,ā€ that is economic activity.

This claim, however, fail a basic tenet of history: to understand words in the context of their time and place. The libertarian right to propertyā€”the right not to be taxed or regulated for any reason but the defense of propertyā€”had not been invented in 1789. John Locke had invented the notion of a right to property. But his goal was not to say how an economy should work, let alone to set limits on the governmentā€™s role in the economy, but rather to say how government should work. His argument was not that it was illegitimate for government to tax or regulate economy activity but rather, that it was illegitimate for Kings to do so without the consent of the representatives of property holders.

Locke never held that there were any substantive limits on what government could do in the economic sphere if it had the consent of the representatives of the people. Look at Lockeā€™s extensive writing on economics and poverty and you will find that they abound in arguments for government taxing, subsidizing and regulating economic activity in order to increase prosperity and to relieve the poor. Rather than being supportive of laissez-faire and free markets, Locke was almost a mercantilist.

Itā€™s not until Adam Smith in the late 18th century that anyone made the general argument thatĀ the regulation of free markets undermines economic growth. And itā€™s not until the middle of the 19th century that Locke starts being reinterpreted by libertarian theorists who, wrongly, see in his work their own notion of economic liberty. Only then does the idea brought forward that we have a right to unregulated economic activity. And we are still waiting for someone to make a convincing argument to the effect that government has not right to tax us to provide common goods such as transportation and communication infrastructure, education, national parks and recreation centers or that there is something misguided about government acting to insure that everyone as the opportunities and goods–such as health care–that enables them to be full members of our political community.

The problems the Founding Fathers sought to solve were much closer to Lockeā€™s problems than the ones libertarians care about. They were trying to design a government strong enough to hold a large continental country together without creating a monarchy or aristocracy. To that time, there were no examples of large republican (that is non-monarchical) governments. The accepted wisdomā€”which goes back to ancient Romeā€”was that republics were only possible in small countries. The Founders tried to devise republican form of government for the country as whole that was neither too weak to be effective nor too strong to diminish the independent authority of the states.

The Founders were not concerned about limiting the role of either federal or state governments in the sphere of economic affairs. They lived under state governments that taxed, regulated and subsidized economic activity as much or more than governments do today. (For example, in 1789 there were no general incorporation laws. Corporations were created by state law that regulated them and often granted them a monopoly.) We know they were supportive of the Federal government taking action in regulating economic affairs that affected the whole country because they met in Philadelphia to address the inability of the Congress to deal with problems of tariffs, western land, and revolutionary war debt.

To the extent that the deliberations in Philadelphia were focused at all on economic issues it was to insure that the federal government would not be too supportive of Northern manufacturing or Southern agriculture. Debates in the Washington Administration about the policies of Hamilton were not discussed in terms of the rights of property but, again, in terms of sectional economies.

So contemporary libertarians who look to the Founders for support are simply inventing a history that justifies their present day concerns

There is no way to know what the Founders would think of the ACA because they never considered issues much like it. This is what we do know, however:

  1. They wouldnā€™t have been shocked by the idea of mandating health insurance, since the first Congress implemented a similar policy for seamen.
  2. They would have not been shocked at the level of regulation in the ACA because they lived in economies that were as highly regulated.
  3. They would not have talked about the ACA interfering with our economic rights because the notion of economic rights had not been invented at the time.
  4. They would have asked whether health insurance is an economic issue that transcends the ability of states to address effectively.

The Supreme Court said yes to question 3 in 1944 for insurance generally. Since then the Federal role in health care has grown substantially in hospital construction, medical research and training; and insurance with the creation of Medicare and Medicaid.

Give this historyā€”and the reality that individual states have only a limited capacity to guarantee affordable health insurance for all or hold down health care costsā€”there is no reason to think that the principles that underlie our Constitution are in conflict with the ACA.

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