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Think Progress tries originalism, fails

By: Neil Stevens (Diary)  |  March 24th, 2010 at 11:27 AM  | 

RESIZE: AAA

Think Progress is alarmed that the coming Constitutional crisis over the President’s newly-signed Patient Protection and Affordable Care Act (PPACA). I conclude this because it is unusual to see progressives use an originalist argument for Constitutional interpretation. However Ian Millhiser and Think Progress need more practice at it, because the argument they make is not the one they intend.

I’ll start with Millhiser’s last point, that the framers “they probably knew a little bit more about the Constitution than Ken Cuccinelli.” This is not entirely true for several reasons. First, we’ve ratified seventeen amendments to the Constitution since the passage of the second Militia Act, and ten more were only ratified six months earlier. These changes to the Constitution require careful consideration, especially those of the ninth and tenth amendments.

Regardless, Millhiser makes one core point: If it is Constitutional to require individuals to purchase firearms in the course of regulating the Militia, then it is Constitutional to require the purchase of medical insurance. However there is a key difference between the two here: the Militia Acts of 1792 are grounded in two specific clauses in the Constitution, while the PPACA has no such support. First see Article 1, Section 8:

The congress shall have the Power [...] To 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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

We see here that the Constitution expressly allows for the Congress to provide for arming the militia. The second Militia Act does that, among other things. Further, the Second Amendment was passed to ensure all free men could arm themselves with weapons purchased and owned by themselves as individuals, as provided for in the second Militia Act:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

So if Millhiser can find support for medical insurance regulation with as much plain language as has arming and regulating the Militias of the states, then his point will be better taken. Until then, all he’s done is support the individual rights interpretation of the Second Amendment, and possibly given a future administration cover for a military draft. But if he wants to defend the PPACA with this act, he needs more practice reading his Constitution and arguing from it.

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  • http://UnitedConservativesofVirginia Cargosquid

    n/t

  • http://www.hakubi.us/ Neil Stevens

    …otherwise it might.

  • rbiii

    It humors me to no end watching Leftists try to make Constitutional arguments when everyone, including them, knows they have spent their entire lives trying to gut it.

  • streiff

    by 1792 substantial numbers of Americans no longer owned weapons, states did have armories to provide weapons.

    The second point that should be observed is that the Act specifically recognizes exemptions from militia service based on state law. In fact, what Cucinelli is arguing is that the same deference be shown to state laws in regards to the takeover of the health care system as that which was shown by the Militia Act.

  • wilfranc

    assume people owned them, otherwise they would have had to include the right to expect to be fed. Hunting and fishing were not sports in ameica, but survival.

  • streiff

    By 1792 the Eastern Seaboard was heavily settled and there wasn’t a lot of hunting to be done by most people. Many states provided weapons and accouterments for those unable to pay. But the law was widely ignored, anway.

  • AndrewHyman

    Just a grammar correction…. The first sentence of the blog post says: “Think Progress is alarmed that the coming Constitutional crisis over the President?s newly-signed Patient Protection and Affordable Care Act (PPACA)” (emphasis added). Maybe “about” would be better than “that”?

  • http://www.hakubi.us/ Neil Stevens

    …especially when dash something out in 30 minutes. :-)

  • AndrewHyman

    is human. I do it all the time, and would be in bad shape if people didn’t correct me once in a while. :-)

  • http://pocketchangeproductions.net/ anotherindyfilmguy

    sigh…

  • ss396

    I have not looked up his quote to see exactly what precedes it. but I’ll take his word for it. Focusing on the first line:

    “[E]very citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock,..etc.”

    What does “so enrolled” mean? It means that these are VOLUNTEERS to the service; that they have enrolled themselves in the militia. Otherwise that law would not have had to make this distinction.

    Perhaps Mr. Millhiser needs an explanation of the difference between “voluntary” and “compulsory”. He seems to not know this.

  • romans12n2

    I read that line a couple of times wondering , ” that the cisis, what?”… They’re alarmed that the crisis IS… that the crisis will… ! I’m a little slow today. Took me a minute to realize that they were alarmed “at” the crisis itself.

  • ciscoguy

    A political party that exists for the purpose of finding new ways to evade the Constitution is now making the case for why their unconstitutional policies are not. Nice.

    I love how Millhiser tries to criticize Cuccinelli for the Framers? ?knowing a little more about the Constitution? than him. Is this an insult? Was Ken supposed to be around when the Constitution was written? Did Milhiser just step out of his time machine after getting a ruling on the matter?

  • Section9

    I’m not sure that Southern Appeal is still active, but it’d be nice to see ol’ Feddy take a crack at this.

    After all, they give the bayonet to moral relativism!

  • aesthete

    Nice job, Neil. True, it is PinkProgress, but still: revel in your absolute rightness on this one :)

  • dgmartin

    Regarding item 3 in the post. The necessity of all citizens to have health insurance is a key provision of the health plan, but it is the promoters’ second choice, behind single-payer.

    If the mandate forcing people to buy health insurance is ruled unconstitutional (and I believe it is unconstitutional), then single-payer becomes a viable option, if not the only viable option.

    “Look” he can say. “All Americans must have health insurance. That much is clear, and it’s been decided. The mandate to buy, along with subsidies and other provisions to make it affordable, was put in as a good-faith, bipartisan initiative on our part, as a free market alternative to single-payer. Now, the GOP says it unconstituional. There’s no working with these people”

    “Since we can’t mandate that all Americans buy health insurance, the only solution left is to give it to them in the form of a tax-funded entittlement like Medicare. Ironically, the GOP, in fighting our mandate on constituional grounds, has unwittingly been fighting in favor of the single-payer option, which is what we proposed in the first place.”

    Now what?

  • JSobieski

    which is why some engage in proactive surrender.

    Single payer is going to be pushed whether we fight or sit there and take it, so I say fight.

  • davesinsanantonio

    Just because the enemy will try something does not mean you quit fighting. Either we are right or we are wrong. If we are right, it is worth fighting for, even if we lose in the short run. There is no compromise with evil. And, taking away our liberty is evil!!! The devil may win a few battles, but he will lose the war. Do you want to be on his side, or just try to sit out the war? Or, do you want to be always fighting for what is right? As I posted yesterday, you do not want your children or grandchildren seeing you compromise with evil, or just trying to pretend it does not exist. You must give them an example of always trying to do what is right, even if the bad guys are successful once in a while.

  • bs61

    I heard it could take 12-18 months to make it to the Supreme Court, so by then we can have more Republican’s to vote against a single payer!

  • scipioafricanus

    I think we need to think outside the box here.
    The 4th Amendment,”The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While usually used in criminal law case the 4th can be interpreted to apply to medical records also, since the Feds would be seizing them against our will. In addition, the “equal protection” clause can be invoked in two ways:1), the Congress has exempted itself from Obamacare which seems to fly in the face of the EP clause and 2), the SCOTUS ruled that pregnant women have the right to medical privacy, but that ruling should also apply to all of us because of the EP clause

  • wardjh

    of the 2nd amendment is that it pertains only to firearms. In all the history of tyranny, the removing of weapons is one of the first things done. The history of oppressed people is the finding of other ways of defending ones self. Karate means open hand; no one was allowed to have anything in his hand when “touching” another person of higher status. The quarter staff became a weapon of choice when a full staff was ruled a weapon. There are forms of martial arts that look like dancing, but are quite deadly.

    The one thing that cannot be banned is the most deadly weapon of all, the mind. There are forms of training that teach how to make the most innocent of items into a deadly weapon. The banning of arms, even firearms, is a delaying tactic. Effective, to be sure, but delaying nonetheless.

    The entire Constitution, and the Bill of Rights in particular, was designed to protect all of us from one enemy – the government. This means that where limits or restrictions apply, it is to the government not states or individuals. While later amendments have been different, Prohibition comes to mind, the original document and amendments were not subtle. To try to twist any of that document into demands on states or individuals is perversion.

  • rubicon01

    Convoluted interpretations of the constitution are a price we must pay. The courts are supposed to be there as arbiter to resolve differences. Some courts do, others actually enable mischievous interpretations based on want, not actual writings. The alternatives are unacceptable though. Because the alternatives are, no constitution or one that is to breath, meaning each time someone finds or conjures up a right, some will attempt to portray it as a right.
    Circumventing to constitution, by ANY politician must be curtailed. We cannot allow politicians or radical activists & their supporters, to cause the constitution to become recommendations. It is the law of the land. W/o it, even the progress we have made would have been impossible. That is why it must exist & we must insist all respect it & adhere to it as closely as possible. If there are changes needed or desired, as provided, it is to be up to the people, not politicians.

  • http://chucksomerville.com/ Chuck From Dayton

    (the unconstitutionality, that is)

    Section 9 – Limits on Congress

    … No Bill of Attainder or ex post facto Law shall be passed.

    “Bill of Attainder”… In the context of the Constitution, a Bill of Attainder is meant to mean a bill that has a negative effect on a single person or group (for example, a fine or term of imprisonment). (www.usconstitution.net)

    I think that pretty much nails the fine for not buying HC.

  • http://chucksomerville.com/ Chuck From Dayton

    Maybe it’s like the penalty for violating a law, which is apparently OK.

    Like the $100 (Title 13 USC) fine for not answering your Census – oops… make that $5000 (Title 18 USC).

    It still is 10th Amendment-relevant to point out that the Constitution does not enumerate a power to make individuals BUY something, and therefore they can’t make such a requirement.

  • izoneguy

    http://hotair.com/greenroom/archives/2010/03/25/the-parable-of-the-satellite-dish/