Columbia law professor Philip Hamburger passes along this response to the latest New Republic post by Harvard law professor Einer Elhauge:
During the past two weeks, Einer Elhauge has attempted to establish the constitutionality of the ACA on the basis of history. Since then, I and others have pointed out that his historical claim is contradicted by the historical evidence. Undeterred, he continues to insist on his historical claim, without offering any historical evidence to support it.
His opening claim was that some early congressional mandates–requiring the purchase of firearms, medicine, and health insurance–were based on the Commerce Clause. In support of this assertion, however, he offered no evidence other than the statutes themselves.
On the firearms statute, Elhauge wrote that Congress passed a statute that “required all able-bodied men to buy firearms.” When summarized this loosely, the statute may seem to have been based on the Commerce Clause. The statute, however, actually stated that “every citizen . . . enrolled [in the militia] and notified, shall . . . provide himself with a good musket or firelock,” thus revealing that it was not a mandate aimed at the general population, but rather merely at the militia. Both the text and the context of this provision clearly point to the Militia Clause as its constitutional foundation. If Elhauge still claims the contrary, he should supply convincing historical evidence.
On the early statutes regarding seamen, Elhauge noted that Congress required ships to purchase medicines for seamen and required seamen to contribute to a hospital fund. The texts of these provisions were enough evidence for Elhauge to conclude that they rested on the Commerce Clause. But statutory requirements for the payment of “hospital money” were old mechanisms for ensuring that the navy, during wartime, could draw on an adequate number of mariners. The goal was to aid seamen and thereby attract men to the sort of life that would qualify them for the navy. In words of an English statute, which was the model for the state and federal statutes, hospital money would ensure that “a competent number of able mariners and seamen . . . may be in a readiness at all times for that service.” Indeed, there is abundant historical evidence that the seamen’s provisions cited by Elhauge were founded not on the Commerce Clause, but on Congress’ power to provide and maintain the navy. If Elhauge still claims the contrary, he should supply convincing historical evidence.
Rather than support his historical claims with historical evidence, however, he offers arguments that are more contemporary than historical. Predictably, therefore, they do not support his initial historical claims.
He argues that the statutes collecting hospital money from seamen also contained provisions regulating their contracts and wages, and that these other provisions probably were based on the Commerce Clause. True enough, but so what? Just because the contract and wage provisions arose under the Commerce Clause, does this mean that the hospital money provisions also arose under that clause? The historical evidence shows that hospital provisions arose under Congress’ power to provide and maintain a navy, and Elhauge’s comments about contract and wage provisions are simply irrelevant.
Elhauge argues, second, from his understanding of “logic,” saying that if the naval power allows Congress to require seamen to pay hospital money, “one could equally say that the Obamacare mandate is justified because it helps ensure a large supply of healthy people to draft into the Army in the event of war.” But this logic is both strained and, again, irrelevant. The logic of exercising a military power over the general public is, to say the least, rather questionable. Such logic, moreover, has no foundation in the health and hospital money provisions, for they were aimed not at the general population, but only at a small class of specialized men, who would be asked in wartime to join the fight. These provisions thus were very traditional and very narrow, and Elhauge’s attempt to draw sweeping modern conclusions from them is therefore unpersuasive. Even more emphatically, his strained modern conclusions are irrelevant to his historical claim. He initially asserted that the seamen’s statutes were based on the Commerce Clause, and his distorted logic about the naval power does not supply historical evidence in support of his historical position.
His final argument is that “Hamburger’s claim conflicts with Supreme Court case law.” Digging in deeper, he explains that Supreme Court cases “hold that federal statutes regulating the duties of shipowners and seamen arose under the Commerce Clause.” Huh? Does an historical claim based on historical evidence rise or fall on “Supreme Court case law”?
Let’s briefly summarize Elhauge’s arguments. He argues: (1) from provisions other than those in dispute; (2) from his own strained logic that the naval power would allow Congress to mandate health insurance payments on the general public; (3) from Supreme Court case law. And all of this in response to historical evidence challenging his historical claims!
In sum, historical claims must rest on historical evidence. Anything else is a distraction. Elhauge began the conversation with a striking historical claim based on no historical evidence other than his rather truncated summary of a few early statutes. If he still adheres to his historical claim, he should support it.
None of this is to suggest that history can solve all constitutional problems. But Elhauge initiated this little controversy by suggesting that a few statutory provisions from the 1790s were clinchers. He therefore needs to address the evidence that the seamen’s provisions were not based on the Commerce Clause, unless of course he really wants to justify the ACA on the naval power.