The Founding Fathers' "Individual Mandate"

06/02/2010 05:12 am ET | Updated May 25, 2011

More than a dozen state attorneys general have filed suit claiming the health care reform bill passed last week is unconstitutional. The focus of their charge is the individual mandate--the provision in the law that requires everyone to have health insurance. The attorneys general argue that Congress has no power to make people buy something from a private company. The lawsuit filed by Florida asserts that the mandate is an "unprecedented encroachment on the liberty of individuals."

But the individual mandate is not really so unprecedented. In fact the founding fathers adopted the first "individual mandate" back in 1792. It required individuals to outfit themselves with guns and ammunition, even if they had to buy those items from private sellers.

The mandate was included in a series of laws known as the Militia Acts. Early Americans were were fearful of a standing army so they relied on ordinary citizens organized into state militias to fight off Natives and invading armies. States, however, couldn't always be counted on to send their militias to help out other states. Comity was an unreliable basis for national security. And ordinary citizens couldn't always be relied upon to have the equipment they would need to be an effective fighting force.

Congress sought to rectify these problems by passing federal legislation. In the first Militia Act, Congress gave the President authority to call out the militias and imposed penalties on any militiaman who refused to obey orders. In the second Militia Act, Congress included an individual mandate: all free, able-bodied male citizens between the ages of 18 and 45 "shall, within six months... provide himself with a good musket or firelock" or "a good rifle." All men of age were also ordered to equip themselves with ammunition and "a knapsack" to carry supplies. Many citizens already had these items. Those who didn't had to go out and buy them, like it or not, presumably from a private seller.

In many ways this individual mandates was much more burdensome than the requirement that individuals buy health insurance. In early America, rural people had little consumable income and many people only used or ate what they themselves made. In cities, many people had no personal need for a military-style firearm. Regardless of the burden, people had to equip themselves, even if they might never have any need to use that equipment.

For years, conservatives have insisted that the only appropriate way to interpret the Constitution is by reference to the original meaning of the Constitution. We only have to look back to the Militia Acts of 1792 to see that an individual mandate to purchase something was well within the boundaries of what the Framers intended Congress's powers to be.

Of course, opponents say, the Framers never imagined national health care legislation. Or did they? The Militia Acts also provided that "if any person whether officer or soldier... be wounded or disabled, while in actual service, he shall be taken care of and provided for at the public expense."