Thursday, April 5, 2012

So What's This About Muskets and the Commerce Clause?

In their desperation to make ObamaCare's individual mandate not seem blatantly illegal, liberals have taken to citing a 1792 law requiring Americans to purchase muskets as proof that they're not stretching the Commerce Clause beyond the Founders' intent. Too bad for them that Randy Barnett at Volokh nuked that argument over a month ago:
5. At the hearing, Professor Dellinger mentioned that Congress had once passed a law requiring individual male citizens to provide themselves with muskets, gear and uniforms of a certain specification. I believe Professor Dellinger was referring to the Militia Act of 1792, which required all able-bodied male citizens, 18 years of age or older, to be enrolled in a militia and provide themselves with certain supplies for that service. 

a. Do you believe Congress most likely relied on its Commerce Clause powers in passing that statute?

Congress was relying on its Article I, section 8 power “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 . . . ” The militia power, and the duty of a citizen to serve, pre-existed the formation of national government.

b. Do you believe the Militia Act of 1792 would have been a permissible exercise of Congress’ authority if it were based solely on Congress’ Commerce Clause powers?

It would not.

c. In your testimony, you alluded to jury duty, selective service registration and several other actions the federal government requires of each individual citizen. You described these as traditionally-recognized requirements that were necessary for the continued function of the government itself. In 1792, the United States did not have a permanent standing army. Do you think service in the militia was among those traditionally-recognized requirements necessary for the continued function of government? 

Without question, it was considered a fundamental duty of citizenship. Congress is now seeking to add an new and unprecedented duty of citizenship to those which have traditionally been recognized: the duty to engage in economic activity when Congress deems it convenient to its regulation of interstate commerce. And the rationales offered to date for such a duty would extend as well to the performance of any action, whether economic or not, when Congress deems it convenient to the exercise of its power over interstate commerce. The recognition of so sweeping a duty would fundamentally alter the relationship of American citizens to the government of the United States.

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