Friday, February 4, 2011

The Militia Act, ACA, and Liberal Democratic Selfishness

The big liberal find in the battle over the constitutional status of the individual mandate and, with it, the Affordable Care Act has been a law from way back in 1792: the militia act, which more or less required Americans to own guns and other items needed to serve in militias.

I think the ACA, including the individual mandate, is clearly Constitutional, but I'm agnostic about whether the militia act really tells us anything about what the framers would say about the individual mandate. I've seen reasonable arguments both ways.

I'm quite positive, however, that Jack Balkin's argument about civic republicanism and the individual mandate is mistaken. He's correct, as far as I know, here:

The requirement to join the militia (and purchase arms for the defense of the state) was an aspect of civic republicanism-- the political idea that citizens had a duty to work toward the public good and make sacrifices on behalf of their fellow citizens and the republic (the res publica, or public thing).
But this is way off:
What is lost in the debate over the individual mandate is that the point of the individual mandate is also civic republican in nature. It requires citizens to make a far less significant but also public-spirited sacrifice on behalf of other Americans who cannot afford health insurance.
The individual mandate is not about personal sacrifice. Nor is it about virtue, or public action -- all of which are ideas associated with civil republican thought. The individual mandate is simply a solution to a collective action problem: proponents believe that we're all better off with a well-functioning health care insurance system, but that without the mandate many of us will have a short-term interest in gaming the system and opting out, thereby destroying the very system we want to preserve. It's not about public action at all. It's about private benefits.

That's important, I think, for ACA supporters -- and for liberals in general -- to understand, and perhaps to emphasize. It's true that there are times that liberals support measures that could fit well into a civic republican frame -- Democratic initiatives on voting rights, or Teach for America. But most of the liberal agenda, whether it's Social Security, climate change, or civil rights, fits comfortably inside the general rubric of self-interest. That is, as Matt Yglesias has pointed out, the idea that contemporary American conservatives are the true heirs of Lockean liberalism while contemporary American liberals are cut off from "classical" liberalism is hogwash.

Basically, I see no reason at all for (contemporary) liberals to abandon selfishness to conservatives when it comes to social insurance programs, including health care. There's nothing noble about the motives involved in making an important market work better (or, as with Social Security or Medicare, supplementing markets with public programs when market solutions aren't likely to work). Farsighted, perhaps, but noble? Not really.


  1. Not really a comment to this post, but I'd love to see you comment on these posts by Matt Yglesias and Dylan Matthews:

  2. Beats me how any 'health service' can do the job when public protection agencies cannot ensure pollution-free water, health services that are not a cover for flogging pharmaceuticals, food that is not laced with chemical trash and genetically modified grains and more.
    The fact is, 'processing' healthful substances does not concentrate goodness so much as remove food from the balance of roughage we evolved to accommodate. And there is no magic system to remove 'preservatives' once they are inside us. Drinking water that is already saturated with content - like pop - means our kidneys have nothing to use to carry away strange chemicals.
    There's an old saying : "An ounce of prevention beats a pound of cure." I've heard the Rodale joke...but paying to correct self damaging activities is supposed to clue one into stopping them.
    Not politics ? Hah. Search 'Rumsfeld Monsanto'.
    Check the Topical Index at for Corporate Farming, Health and Water entries in the Topical Index if I have your attention.

  3. Jonathan,
    The real gist of the liberal love-affair with the Militia Act was that Founding Fathers had passed, and used, a bill that "punished" inactivity and required activity.
    It is not the case that this is proof of anything that liberals are trying to prove, so much as it refutes one of the two claims by the GOP: the Founding Fathers would have considered the ACA unConstitutional for requiring an activity by citizens.

  4. AAW,

    Yeah, I get that, but I'm less than overwhelmed at the strength of the evidence. The two cases have some similarities, but plenty of differences, too. I'm not at all convinced that the Militia Act would be significant for anyone arguing in good faith who (1) was an honest originalist, and (2) previously thought that the individual mandate was unconsitutional.

    Of course, there's hardly anyone in that category, so I'm not sure how much any of that matters.

  5. Perhaps the point of bringing it up is to demonstrate that there isn't anyone in that category.


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