I hear that Antonin Scalia likes to use “original intent” when interpreting the Constitution. What, for example, would our first president, George Washington, have thought about a law that “created commerce” be forcing people to buy something they might not have otherwise wanted to own? Let’s a take a look at a law that he signed during his first term in office.
Second Militia Act of 1792
The second Act, passed May 8, 1792, provided for the organization of the state militias. It conscripted every “free able-bodied white male citizen” between the ages of 18 and 45 into a local militia company overseen by the state. Militia members were to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack.
So, the government can conscript you into a militia against your will and force you to buy a gun, bayonet, belt, flints, and bullets, but it can’t make you purchase health insurance?
Here’s Scalia wanking during oral arguments on the Affordable Care Act:
JUSTICE SCALIA:…The argument here is that this [mandate] also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left?
If the government can do this, what, what else can it not do?
I don’t know. One of my older brothers was born in Stuttgart, Germany. That wasn’t because my parents wanted to be there. It’s because my father was drafted. Fortunately, he didn’t have to pay for his own gun, bullets, and knapsack.
that’s been pointed out since the beginning of the “debate”.
The only valid argument I’ve seen a stupid rightwingnut come up with is “well, was the constitutionality of it challenged then?”
which of course, has no impact on your point. George had a few choice words for torturers too, but they weren’t swayed by that either.
There is one possibility that no one has discussed seriously. The Court, having taken up the case could postpone their decision and not decide this year.
I don’t think anyone in t Washington elite understands how the politics of this will work in the rest of the country.
Is this a real concrete possiblity though? I admit that I’ve never really followed the SC hearings as closely as I followed this one, so I don’t know the answer, but how many times has the SC essentially “kicked the can down the curb” so to speak?
You think they could rule that the issue regarding the mandate isn’t “ripe” because no one has been forced yet to pay (and there is no enforcement mechanism anyhow, so if they brought suit later on, there is no damage — so no foul).
Well the the requirement to buy rifle, powder et cetera was for the government’s benefit not the individual’s own good. Also, were Quakers also required to buy weapons and show up for drills?
But it’s a good argument you make.
The quote from Scalia is interesting because it applies to any claim of power under the constitution at all. The same quote may be used for any exercise of federal power. The mere fact that the constitution limits powers cannot of itself make a necessary power improper or there could be no necessary and proper power.
See, the problem back then was that they didn’t insist on seeing George Washington’s Birth Certificate (long form, vault copy), otherwise they would have discovered that…
He (gasp!) wasn’t born in the U.S.A!
If the USSC Fascist-Five want to hand a gift to the GOP, they’ll kick the can down the road, so that ACA remains a burning issue. Killing off the entirety of the ACA is likely to be a gift to the Democrats, who can pull up every story of a cute kid dropped from coverage. Just killing the mandate? Tough shit, health insurers, the Fascist-Five just signed your death warrant.