Does that 1798 Act Make Obamacare Constitutional?

Left-liberals have been arguing that the 1798 Act for the Relief of Sick and Disabled Seamen, which none of them knew about until well after Obama’s health-care bill passed, makes Obama’s bill constitutional. Touching as this sudden constitutional scrupulosity may be, the 1798 act proves no such thing. Rob Natelson sent me a note to this effect that he has permitted me to share on this blog. (Prof. Natelson, formerly of the University of Montana Law School, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Colorado.) What follows is in addition to the more fundamental point that the mere fact that something has been done once is no proof of its constitutionality; such a principle would require us to endorse all manner of enormities.

As you have reported in your weblog, some “progressive” commentators have argued that 1 Stat. 605 [the Act for Sick and Disabled Seamen] was adopted pursuant to the Constitution’s General Welfare Clause, and they have cited it as a constitutional precedent for Medicaid and for the Patient Protection and Affordable Care Act.

As you have pointed out, however, the measure was not passed until nearly a decade after the ratification of the Constitution. This renders it only weak evidence, if it is evidence at all, of the understanding at the ratification.  (See my book, The Original Constitution: What It Actually Said and Meant, p. 40, for a discussion of the appropriate time limits for evidence of original understanding.)

More importantly, though, the “progressives” appear to be sadly mistaken as to the constitutional basis for the law. The historical record makes it clear that it was not adopted under the General Welfare Clause, but was considered a constitutional regulation of  foreign commerce precisely because it targeted directly workers involved in navigation.

There are several bases for this conclusion:

First, at the time of the Founding  the legal term “regulate commerce” was defined to include the regulation of navigation.  See Robert G. Natelson, The Legal Meaning of “Commerce” in the Commerce Clause, 80 St. John’s L. Rev. 789 (2006) (collecting over 500 uses of the term “commerce” in prior and contemporaneous legal materials). That is why Chief Justice John Marshall could write in Gibbons v. Ogden that “all America is united in that construction which comprehends navigation in the word commerce” and why he included regulation of mariners and merchantmen within that term.

Second, in congressional debate the bill’s advocates compared the measure to an act of Parliament for British sailors dating from the reign of Charles II. That program was discussed—and approved—by James Otis, one of the most famous pre-revolutionary American advocates, in his highly influential pamphlet, The Rights of the British Colonists Asserted and Proved. Otis, like other colonial pamphleteers, laid heavy emphasis on the distinction between British exactions for revenue (taxes), which they rejected, and British impositions for the regulation of inter-colonial trade, which they accepted. Thus, Otis’ acceptance of the British mariners’ law strongly suggests that he and his contemporaries considered such measures to be no more than regulation of navigation, and therefore of commerce.

Third, in congressional debate the exaction was discussed as offsetting or complementing bounties on fishing and the duty on salt—quintessential “regulations of commerce” as the term was used then.

Fourth, although the word “tax” appeared in earlier drafts of 1 Stat. 605, the word was removed before passage.

Fifth, as a check-off from mariners’ pay, the program was analogous to other self-funded regulations of commerce, such as fees imposed for the funding of inspection laws (cf. U.S. Const. Art. I, Section 10, Clause 2).

Sixth: The only constitutional opposition to the act in Congress arose to earlier bill drafts, when the exaction was still referred to as a tax. The ground of opposition was that might be an unconstitutional unapportioned direct tax. The lack of other constitutional objections (it passed overwhelmingly), coupled with its precedent in the British Empire, suggests a consensus that 1 Stat. 605 was authorized as a regulation of foreign commerce.

Seventh: The foregoing is strengthen by the historical context of the bill: It was adopted during the Napoleonic Wars, when the U.S. was trying to protect our shipping from measures taken against it by France and Britain and when there were increased risks to American seamen. Again, this suggests that it was a measure passed under the Commerce Power in facilitation of navigation.

Obviously, therefore, 1 Stat. 605 is not a serious precedent for modern federal health care programs, which are supported by taxes and go far beyond serving people directly involved in navigation.

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  • MyFirstNameIsPaul

    Can you ask Dr. Natelson to make his book available on Kindle?

  • http://www.facebook.com/people/Tom-Insko/100000927025663 Tom Insko

    It’s comical to see the Progressives straining at gnats to find a precedent for Obamacare. So now they are abandoning the Militia Act and arguing this? It was encouraging today to hear the president expressing support for the 10th Amendment in his presser; unfortunately, it only seems to apply in certain narrow situations with this regime.

  • Willis

    What gnarly reasoning!! Everybody is looking for the short cut. And Obama is the short cut president.

  • http://tomwoods.com Tom Woods

    It already is.

  • Matthew

    Has anyone shared this with Paul O’Rourke yet?

  • MyFirstNameIsPaul

    You’re right.  Strangely, the page you linked to indicates that the book is not available on Kindle.  Here is the Kindle version:

    http://www.amazon.com/The-Original-Constitution-ebook/dp/B003NSBPXM/ref=sr_1_2?s=books&ie=UTF8&qid=1309400712&sr=1-2

  • David

    Where can the text of the act be found?

  • Brian

    http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=728

  • http://www.facebook.com/people/Algernon-Sydney/100002216867517 Algernon Sydney

    Since we are pulling out random pieces of legislation for precedent how ’bout a veto on a bill for a particular set of folks–the indignant insane! Let’s see the date was May 3, 1854 and President Pierce stated in his veto message that such legislation would grossly violate the general welfare clause because it wasn’t, well, general. It almost goes without saying that going over American history you will run into more precedents like Pierce’s against Obamabcare than those that support it.

  • zeke5123

    Even if something along this line were true, it is a rather poor interpretation of the general welfare clause. The architect of the Constitution, James Madison, wrote the 10th Federalist Paper warning of factions. The General Welfare Clause is an attempt by Madison to prevent using the powers of the federal government to help a certain faction. It is a further restraint on government. I never understood the notion that the General Welfare Clause provided the government carte blanche to pursue whatever act they wanted. Why bother enumerating any powers? Why bother with the 9th and 10th Amendments? But if we understand the General Welfare Clause as claiming that not only does government have to posses the power to pursue a certain course, that course must promote the general welfare; it cannot support a faction. In a way, it provides the equal protection of the law. But the meaning has been lost. 

  • zeke5123

    Sorry, I typed that out quickly. Basically, if you understand the General Welfare Clause to be an additional check on government’s power, then it makes sense in the context of the Constitution. Otherwise, we are left with a document seemingly contradictory at worst or unnecessary at best.

  • Paul J O’Rourke

    In the debate the act was compared to a British system that performed a similar function, but in that comparison it was noted their system was established by private citizens, and applied only to members of the Navy, who funded its operation. Quoting from the record, Mr Sewall went on to say: “so that the two cases were very different.”
    There was some objection based on the fact that some states already had their citizens contributing to a system for relief of ALL disabled citizens — universal, publicly funded healthcare. (those socialists!)
    Federalism was mentioned, as well as taxing being proportional per the Constitution.

    Mr Pinckney noted that the tax applied to sailors, relieving the public from the burden of funding their care, leaving the public to funding only other disabled citizen’s care. Pinckney noted it would be beneficial to citizens “in GENERAL,” though the tax applied only to sailors.
    Mr Livingston noted that: “A sailor is concerned only for the present, and is incapable of thinking of, or inattentive to future WELFARE; he is, therefore, a proper object for the CARE OF GOVERNMENT…”
    (my emphasis in caps)

    There is only one mention of a military application, and that was that
    knowing they’d have care available should help with recruiting navy
    sailors. The act was, in no way, based on a military application.

    The act passed easily in both houses. It was later extended to coastal trade and to inland rivers and the Great Lakes. Perhaps you can describe the state of war along the Ohio River?
    It became the Public Health Service, which still exists. The 1798 act is cited in the Social Security admin’s history of that act, and Medicare is an amendment to Soc Sec.

    I never did, nor do I know of anyone who has cited the 1798 act to justify “Obamacare,” which is not based on a taxing scheme, as was the 1798 act, and as Soc Sec and Medicare are. One judge has already tossed out Team Obama’s Gen Welfare pleading, and rightly so.

    You describe a non-existent argument that links the 1798 act to “Obamacare,” but only to convenience your above argument, which is, as shown, a flawed argument that is very much in need of convenience.

    Also note that even by shifting the authority from Gen Welfare to Commerce Clause, you openly admit that the federal government has the authority to be involved in healthcare. Did you even think about how that deconstructs a common right-wing theme of “no constitutional authority?”

    Nice try, but you don’t win the Kewpie doll.

    Thanks to Matt for notifying me of this article.

  • Matt

    Paul – don’t take this as a dig – but what are your credentials?  What is your resume?  Part of the reason I ask is because your response, unlike the blog above, is devoid of references.  So, if we’re to take your word for it then I’d be interested in knowing a little more about you.

    Dr. Woods – O’Rourke appears to have raised a compelling question: If we shift support for the 1798 act from one clause to another then have we admitted that it’s within the power of the federal government to involve itself in healthcare?  Why or why not? 

    As always, thank you for the education!

  • Willis

    It is no good to say that because Tom Woods refutes your argument from two angles he has admitted that your false premise is legitimate. He refutes the argument from both the Gen. Welfare angle; and to humor your kind, he gives a refutation from the bogus premise as well. This is no concession statement. Good try, though.

  • http://twitter.com/csawordsmith Mike Shaner

    Thank you for writing this. I have been having this very debate for sometime now. I cited this post and the person finally just gave in. I am not sure If I won him over or not but I did win over several observers which was the true point of the debate anyway.

    I would like to invite all readers who are interested in liberty to join the blog linked below. Read, Subscribe. Follow, share with friends, ask friends to do the same, and facilitate the Revolution!

    http://tinyurl.com/create.php

  • Brian

    The Philadelphia Convention rejected the idea of having a Congress with general legislative powers.  It approved a Congress with limited and enumerated powers, which is exactly how it was explained to the ratification conventions.  Congress, the ratifiers were repeatedly told, would only have the few enumerated powers “expressly delegated” to it.  Again and again, it was said that the “general welfare” clause need not worry anybody; it was a copy from a similar clause in the Articles and was limited and qualified by the enumeration.  To argue that it grants broad authority to tax and spend in any area makes the other enumerated powers nugatory.

    Tom already explained all this.  Scholars like Raoul Berger, Kevin Gutzman, and Kurt Lash documented this elsewhere.  Social Security, Medicare, and Obamacare can not be justified on the original intent of the general welfare clause, nor on the original intent of the commerce clause.

    The Sixth Circuit upheld Obamacare based on the bogus Revolution of 1937 interpretation of the commerce clause, which allows for virtually anything to be legislated upon by Congress.  My guess is that the Supreme Court will also uphold Obamacare.  Kennedy is the swing vote.  True, he was with the majority in Lopez, but only on a technicality.  Anybody on the court, who considers the Revolution of 1937 legitimate, must approve of everything Congress does.  To not do so, one would have to invent a novel, arbitrary limitation to an already limitless interpretation.

    These programs will fail in time.  Either the dollar will be destroyed and the programs’ payments made worthless, or the programs will be repealed to save the dollar.  Socialism and central planning always fail.       

  • GregP

    The ‘general welfare’ clauses have been deliberately misconstrued by the Feds to grab Powers that don’t exist. I read the clauses as providing *justification* for having a Constitution *at all*; not as imparting any specific Power (the word ‘general’ is a tip off). Why would the drafters of the Constitution include any Powers in the Preamble? So what if the words, ‘provide for general welfare’ got repeated in Art 1, Sec 8? The context is to provide a ‘why’ Congress has the Power, not that they have some undefined, indiscriminate Power to provide for general welfare. And there is *no* mention of ‘general welfare’ under Executive or Judicial Powers. Was that just an oversight?

    To make this point, I use the analogy of playing a game. If I have a game that I’d like to play with you, to entice you I say as a pretext (or Preamble), “If you play the game, we’ll have fun.” Having fun is the *reason* to play but what is assumed is that in order to have fun, we have to play by the *rules*. The ‘general welfare’ clauses simply tell us that if we play the Constitution ‘game’, we’ll have ‘fun’ (because it promotes our general welfare among other things), but to have fun, we have to play by the rules (by sticking to the enumerated Powers). You can’t make ‘having fun’ a rule of a game nor can you make ‘promoting general welfare’ a Power in the Constitution. It’s the difference between ‘why’ versus ‘how’.

  • Austin H.

    Tom, thanks for spreading Rob Natelson’s work to your followers.  He is on our side.

  • http://brianroysinput.blogspot.com/ Vctrvllbrian

    Since Barack Obama is NOT a United States “Natural Born” Citizen without sole US citizenship, without a US Citizen Father, and without ever introducing proof of birth or identity in a Court of Law per 333 US 640 (1948) @ 653 and 533 US 53 (2001) @ 54,62 because his Birth Certificates are forgeries and his Social security Numbers felonious identity theft, Obamacare should be a moot subject as should also his usurpation Presidency and voided out per Marbury v. Madison, 5 U.S. 137 (1803)@180http://supreme.justia.com/us/5/137/case.html  which states that “a law repugnant to the constitution IS VOID. . . .” and …“in declaring what shall be the SUPREME law of the land,the CONSTITUTION itself is first mentioned;and not the laws of the United States generally,but those only which shall be made in PURSUANCE of the constitution, have that rank.”

    “No Person except a Natural Born Citizen…shall be eligible to the Office of President….”US Constitution: Article 2, section 1, Clause 5″…the term ‘natural born citizen’ is used and excludes all persons owing allegiance by birth to foreign states.”The New Englander and Yale Law Review, Volume 3 (1845), p. 414http://books.google.com/books?id=gGNJAAAAMAAJ&pg=PA414&dq=Vattel+%2B%22natural+born+citizen%22&as_brr=4&cd=5#v=onepage&q=Vattel%20%20%22natural%20born%20citizen%22&f=false
    “…at the time of his birth, Barack Obama Jr. was … a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.” http://www.factcheck.org/askfactcheck/does_barack_obama_have_kenyan_citizenship.html

    So when are you going to get serious about the Constitution being adhered to where it respects Obama?

  • http://www.facebook.com/people/James-Allen/100000883155956 James Allen

    Actually everyone is wrong here. The act in question came under the marine power of the nation and not general welfare or regulation of commerce. For a great discussion on this and why Congress really has no power over commerce of the states see here:

    http://federalistblog.us/2011/06/no_power_over_interstate_commerce.html

  • http://www.facebook.com/people/Paul-Bonneau/100002094647954 Paul Bonneau

    The Alien and Sedition Acts were passed in 1798 too. I’m sure they will be glad to hear that sedition is a lawful concept, particularly next time we have an R for president.

  • Beethoven II

    The 1798 Act only applies to wounded/sick military/navy persons, those without such titles are not listed within the act itself so it cannot be applied to all United States personal. Also, the mandate portion of it automatically makes Obamacare unconstitutional because it violates the commerce clause. The left cannot argue worth a shit.

  • Awemmons

     Great analogy, I was having trouble understanding the general welfare clauses meaning until I read your analogy.

  • Anonymous

    Tom,  the problem with nulification from the mind of Tom Jefferson is that in those days everyone recognized the States had the politidal status of sovereign.  Today that is nolonger true.  If you’d like to learn why. I’ll send you a copy of my manyscript if you’ll give me an email that you will receive in oder to read it.  The title is ” The Reformation of Union State Sovereignty.”  My email is kcreamer@stny.rr.com.  Right me for a requeast and I will see that you get a copy.