George Washington vs. Ken Cuccinelli

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    Ken Cuccinelli is arguing that a “mandate” by government for citizens to purchase health insurance is unconstitutional. Is it? Let’s ask George Washington.

    The truth, however, is that the Second Militia Act of 1792, required a significant percentage of the U.S. civilian population to purchase a long list of military equipment:

    [E]very citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided…

    This Act became law only a few years after the Constitution was ratified, in President George Washington’s first term. Many of the Members of Congress who voted for the Act also were members of the Philadelphia Convention that wrote the Constitution. In other words, they probably knew a little bit more about the Constitution than Ken Cuccinelli.

    Yes, they certainly did know more than our (not-so) esteemed Attorney General. But then again, so does anyone, their uncle, their pet hamster, their goldfish, etc. Ken Cuccinelli: lowering the collective IQ of Virginia government since 2002!

    UPDATE: According to Washington and Lee University law professor Timothy Stoltzfus “Health bill lawsuits are going nowhere”. Total demolition of Cooch; case dismissed!

    • The Militia Act (in effect from 1792-1903) provided for the authority of the President to call out the militias of the states whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe. Kind of like what we have today with our Military.

      The Militia Act, which superseded the several states Militia Acts is not unconstitutional. In Article I, Section 8 of the Constitution it states:

      “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”

      “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;”

      And so, you would rather the Militia NOT have any guns with which to defend itself?

      Now, where in the Constituion does it state that every person MUST buy health insurance Lowell? Where in the Constitution does it give the Federal Govt the power to regulate health care? Answer? Neither are in there.

    • Ron

      Let’s be clear about this: This is 100% an ennumerated power of Congress, to tax and spend for the general welfare.

      Don’t believe me, conservatives?

      Article I, Section VIII, Clause I of the US Constitution:

      The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

      That is the FIRST enumerated power, before the dreaded Commerce clause (which also, on its own, gives Congress the power to regulate exchanges and the myriad abuses of the insurance industry, which they have ALREADY given anti-trust protection to). If someone doesn’t wish to have health insurance, then they pay a tax, which Congress is given plenary power to legislate. The proceeds are then used to spend on the program.

      I am not, however, convinced that the reactionary activist Supreme Court will do the right thing.  

      • Hugo Estrada

        Except for the 2nd one, of course.

        You guys are fun 🙂

    • Teddy Goodson

      arguments are at the core of most rants from Tea Party members and like-minded self-described conservatives. The merits of those arguments (which, when you dig into the actual crafting of the Constitution, revolved around protecting the “peculiar institution” of the Southern States, i.e., slavery, in order to induce those states to join the federal union) were settled by the long-past unpleasantness between the North and the South mid-19th century.

      The tension and the arguments are never going to go away, but the definitive answer to the basic question was made at Appomattox over 130 years ago. The federal Union is dominant—- but the tension remains, mitigated by the federal nature of the union.

      The beauties of the American Constitution are manifold, and two of these are 1) its federal nature and 2) its bare bones, mission-type statements providing a framework for governing which permitted orderly growth geographically and non-violent change politically to meet the new conditions resulting, without freezing change and growth into a straight-jacket of details. Such flexibility on such a firm framework is why our system has survived the rapid changes of modern life, IMO, unlike most countries which cycle giddily through one political form after another.  

      Pretending to be a “strict constructionist” that knows precisely what “Founding Fathers” meant by every phrase of the Constitution and demanding that your interpretation is the only one allowed, and that your interpretation must be rigidly followed negates that very flexibility. This mindset reminds me of those self-appointed Bible police who decide certain parts of the Bible (their choice), are literally true and absolutely must be included in public education. Or the anti-contraception true believers who object to family planning because god won’t send you more children than you can afford. And so on. Medieval.

      • NotJohnSMosby

        I think a truly strict interpretation of the Constitution would find no mention of Judicial Review.  Thus, no way that the Supreme Court can overule any law the Congress passes and the President signs.

        Right?

    • Peter 2010

      Poor Cooch. As Senator Ron Wyden points out, Cooch’s latest legal splash (challenging the individual mandate in the health care law) is just as badly flawed as Cooch’s “advice” to Virginia’s colleges and universities to cancel their non-discrimination policies based on sexual orientation. What’s his next windmill to tilt at?

      http://www.huffingtonpost.com/

      Sen. Ron Wyden (D-Ore.) has a message for all the attorneys general and Republican lawmakers who are threatening lawsuits and claiming that an individual mandate for insurance coverage is unconstitutional: You don’t have to abide by it — just set up your own plan.

      The Oregon Democrat isn’t inviting opponents to defy the newly-enacted health care law. Instead, he’s pointing out a provision in the bill that makes moot the argument over the legality of the individual mandate.