Adams’ Congress Would Have Passed the Affordable Care Act

And Chief Justice Marshall’s Court would have sustained it.

Last week, Forbes “discovered” the Act for the Relief of Sick and Disabled Seamen, 1 Stat 605 (1798) (pdf). Scare quotes because, Eugene Volokh’s blog beat them to it by about eight months, but the comparative circulation being what it is, the Act, which demonstrates originalist support for the notion of “socialized medicine,” has only gained prominence now.

The Act originated what would become the first federally-managed health care system, for marine workers and longshoremen, and funded it by an employer mandate, by which ship captains would find their vessels unable to leave port, unless their employees were documented, and the exaction paid on each. The system also originated a corps of doctors and health administrators under the supervision of the President — which is to say, the Executive Branch — creating America’s first substantial health bureaucracy, and thereby, our very first “death panels.” All together, powerful proof that the Founders intended their new government to be capable of taxing and spending, under the Commerce Clause, for the care of its citizens.

Careful readers will note several points of distinction. First, the care of seamen and longshoremen falls within a narrower definition of Congress’ Commerce Clause powers than, say, health care writ large. But the modern Commerce Clause adequately supports the regulation of the insurance industry, making this, at least, a non-starter. And second, the Act contains no individual mandate, which is, after all, what all the fuss is about. But the presence of an employer mandate, approved by the very men who wrote the Constitution, shows a willingness to deploy the commerce power in a tax-like, socially coercive manner. And for the narrow goal of improving the well-being of the merchant marine, no individual mandate was needed, since a seaman only encounters his profession’s perils through his employer.

There is nothing new in today’s health care debate: neither the problems nor the solutions were beyond the imagination of the founding generation. Removing the perception of novelty that surrounds the individual mandate is half the battle, both with the public and the courts; and this Act is adequate to that challenge.


  1. And as a public service announcement, something like 1/2 to 2/3rds of the actual provisions in the Affordable Care Act were once (and still are) Republican ideas. Yes, you read that right.

  2. There’s great language of Grassley supporting the individual mandate :)

  3. Considering the Alien and Sedition Acts, one could argue that the Constitution was not necessarily at the forefront of the John Adams congresses’s minds all the time. But an interesting precedent nonetheless.

  4. I was thinking of that as I was writing this :). I think the lesson of the Alien and Sedition Acts is different, though. Their passage may actually reflect the original intent, and thus demonstrate how the First Amendment speech right has grown, despite its narrow meaning at the founding. For example, it was not until the last century that we could state, with any certainty, that the Acts WERE unconstitutional, because seditious libel is protected speech. Thank Holmes & Brandeis for that, but it was by no means clear then!

  5. That’s a good point – I guess in the early days there was an understanding that only “truth” was actually protected.

    I remember a quote by Jefferson about how the Federalists, having failed to gag the press with the Sedition Law, then attacked it from the other direction by “pushing it to such licentiousness that it loses all credit” or something. Not that the Jeffersonians were much better in that regard.

    1. I wish that politics were held to at least the same standard of truth that other avenues of speech are.

      The things that are said in political campaigns could otherwise get you sued for slander or put you afoul of “truth in advertising” laws.

    2. Ideally speaking, political speech is already subject to the ‘supreme’ form of scrutiny, the judgement of the voters.

      That the voters’ best judgement might not always be the best is another matter.

    3. And that standard of voter accountability only works in a sound-bite-less culture. These days there’s just too much information flowing at too high a rate from people we are SUPPOSED to trust for it all to make sense to everyone.

      Like Reagan used to say, trust but verify!

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