In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention. Their core basis for this claim is that purchase mandates are unprecedented, which they say would not be the case if it was understood this power existed.
But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate. ...
Nor do any of these attempted distinctions explain away the mandate to buy guns, which was not limited to persons engaged in commerce. One might try the different distinction that the gun purchase mandate was adopted under the militia clause rather than the commerce clause. But that misses the point: This precedent (like the others) disproves the challengers’ claim that the framers had some general unspoken understanding against purchase mandates.
This gives me an excuse to talk about what I'm now calling my "But, Hamilton" logic of constitutional interpretation. Actually, I don't even need it in this case because some of the other prominent founders are making the constitutional argument for me. Well, either that or they are pulling a Jefferson and ignoring what they think is constitutional for the sake of passing what they think is decent policy. And if that's the case, I think it says something about the nature of constitutions and governance.
What I think this shows is what I've argued about the commerce clause issue regarding the constitutionality of the individual mandate, which is that both sides are arguing over merely a difference in degree in which the state can regulate commerce. Yeah, there is the inactivity argument. But the article above addresses that as well.
My "But, Hamilton" argument is about the need to look back to what the founders said and did as a way to interpret the constitution. Doing such as a starting point is fine, if not perfectly logical. But I have a problem with using it as both the starting point and ending point, which is commonly used by conservatives. Typically, they will bring up a quote or something from a founder that appears to support their objection to some policy that asserts that the gov't has the power to do something. For instance, they would say something like "Thomas Jefferson said individual mandates are the greatest form of tyranny".
At that point I say, fine, that might be a valid argument. But those are the thoughts of only one founder. What did a few more of them think? And I bring up Alexander Hamilton because not only was he an important founder (Washington's aide in the Revolutionary War, teamed with Madison to form a Constitutional Convention, helped persuade Washington to attend the CC in order to give it merit, was a strong advocate for the federalist side during the CC and thus helped shape the content of the Constitution, helped write The Federalist Papers to promote the Constitution and which are used to interpret the Constitution today, served as Washington's Treasury Secretary and was such a close advisor that it turned Jefferson and Madison against Washington), he was an advocate for strong national gov't and thus fairly expansive powers. Thus he would often disagree with the likes of Madison and Jefferson over constitutional issues.
So it's likely that for any quote modern conservatives can bring up in favor of their interpretation of the constitution, liberals can bring up a quote from Hamilton (or other founders) in their favor. And at that point the whole "What did the founders think" line of constitutional interpretation become mostly moot. We are then left to our own logic in order to justify our position. And then you have to move away from the purely theoretical way of governing and into the somewhat practical form that favors actually addressing problems. That need to address real problems is probably why the founders passed individual mandates.