It’s a core question that divides the American right and left: what kind of federal authority is granted by the commerce and taxation (general welfare) clauses under the constitution? And how should the Supreme Court assess it?
Of course, that debate has raged on since ratification, but I’m intrigued about how a 1798 law making the blogosphere rounds might tilt the discussion. At issue is a statute called "An Act for the Relief of Sick and Disabled Seamen," which levied a tax on seamen who worked on merchant ships, creating a government-run healthcare system to treat all the physical illness contracted by workers traveling the world’s ports. The thrust of the blog discussion has been the law’s apparent mandate provision and its possible similarity to the new healthcare law passed last year. Leaving the narrower mandate question aside, the existence of this law seems to blow holes through the strategy of hiding behind "the framers" whenever one opposes the scope of modern-day spending and regulation.
My contention has always been that people are fooling themselves if they think there was some sort of monolithic position on the constitution’s meaning when it was ratified. Given that the charter was the product of extensive compromise, the disagreements we have today were also in full bloom then. But layering in the Seamen Act strengthens that basic conclusion.
A quick primer on current precedent:
To create the baseline, it will help to throw out a brief summary of the history behind the constitution’s commerce and general welfare clauses.
The disagreement started almost immediately, when within the nation’s first administration Alexander Hamilton battled Thomas Jefferson to influence President Washington, who was trying to decide whether to support the creation of a national bank. Hamilton argued that the constitution, particularly the taxation and commerce clauses, carried implied powers; language should be interpreted broadly so proper energy could be applied as needs evolve. Jefferson pushed for a much more limited scope, arguing that the constitution’s words should be read narrowly, ensuring a limited and small government.
Washington sided with Hamilton, and the Bank was established. Later on, the Supreme Court gave the Hamiltonian implied powers view its imprimatur in McCulloch v Maryland. As those seeds have grown, the courts have rarely ruled against congressional use of these powers, outside of a brief shift during the Lochner era. [The Lopez and Morrison decisions do put contours around the commerce clause, but where economic behavior is involved, the power is broad].
How does the Seamen Act fit within this framework?
Conservatives typically argue that the timeline above has led to a government that would be very foreign to the constitution’s "framers." In the bigger sense, I think such an observation is irrelevant – the framers didn’t claim to know what the future would require of us, so they intentionally wrote broad language into the Constitution to ensure its continued relevance.
But the key here is that the Seamen Act casts doubt even on that conservative premise. Here we have the founding generation carrying out all the supposed evils of the modern federal government. Those first leaders imposed taxes to create a system of government-provided healthcare, while mandating compliance to a significant degree. That overall policy is remarkably similar in reach to what we generally see today, where the government has assumed a role in basic healthcare delivery.
So when conservatives constantly reference the "framers" in opposing government involvement in healthcare and elsewhere, they’re missing a vital point: those legendary leaders (John Adams, et al) leveraged the commerce and taxation clauses to do that very thing, all the way back in 1798.
What does all of this mean for today’s debate?
To me, this is even more evidence that the judicial question about the commerce and taxation clauses is finished. It would be a reckless case of judicial activism for any court to overturn so much precedent, which is reinforced historically by the existence of early laws like the one I’m describing here.
Of course, that doesn’t mean there isn’t a constitutional dimension to debates about healthcare, education and all of our pressing needs. But at this point, those are debates for the political branches (an expression of the democratic process), not the courts. The Framers themselves practiced as much.