The First Individual Mandate: What the Uniform Militia Act of 1792 Tells Us about Fifth Amendment Challenges to Healthcare Reform

36 Pages Posted: 14 Jun 2010 Last revised: 9 Jul 2010

See all articles by Bradley A. Latino

Bradley A. Latino

Seton Hall University School of Law

Date Written: May 9, 2010

Abstract

Beginning in 2014, the Patient Protection and Affordable Care Act (PPACA) will require many to purchase a private health insurance policy or pay a monetary fine. Once considered an unprecedented Act of Congress, the debate over this "individual mandate" recently rediscovered a very similar provision in the Uniform Militia Act of 1792 (UMA). The Act made militia service compulsory for every white, able-bodied male citizen between 18 and 45, and required they supply themselves with a field-ready musket and other gear.

This paper first establishes historical and legislative context for the Militia Act, then analyzes how the UMA might affect Fifth Amendment-based challenges to healthcare reform. The two mandates are indistinguishable under current Fifth Amendment doctrine, which permits both. The UMA also provides a strong historical argument against the addition of new substantive rights that would prohibit federally-mandated purchases.

Keywords: PPACA, healthcare, health care, individual mandate, mandated purchase, Militia Act, Fifth Amendment, takings clause, government taking, just compensation, due process, substantive due process, constitutional law, health insurance

Suggested Citation

Latino, Bradley A., The First Individual Mandate: What the Uniform Militia Act of 1792 Tells Us about Fifth Amendment Challenges to Healthcare Reform (May 9, 2010). Available at SSRN: https://ssrn.com/abstract=1624666 or http://dx.doi.org/10.2139/ssrn.1624666

Bradley A. Latino (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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