The health care insurance mandate and historical analogues: tea, cotton, and manufactured goods

Scarberry, Mark Mark.Scarberry at
Mon Feb 6 17:29:42 PST 2012

It doesn't seem likely, of course, that the current broad reading of the commerce power will be trimmed back. In terms, though, of whether the power should be extended to justify the mandate, I wonder whether it would be useful to consider historical analogues that would have made the founding generation particularly sensitive to mandates. I imagine others have already considered these points, but

1. Wouldn't the founding generation have been particularly sensitive to mandates due to the British having in a sense forced tea down their throats (with landing of tea backed up by warships)? (No reference to the current tea party movement intended.) I suppose we all are in the market for beverages.

2. Ditto with regard to intersectional disputes over tariffs, imposed to force southerners to buy northern manufactured goods? (Would there also have been a similar concern about forcing northerners to buy southern and western agricultural products?) Or did the tariff disputes arise too late, historically, to be relevant to any sort of original meaning analysis?

I'm not saying that these issues involved mandates, but I think they would have made it particularly unlikely that the commerce power would have been thought to include the power to impose mandates. I think there would have been a visceral reaction against mandates generally.

Perhaps the historians on the list can help us on these points.


Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
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