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
Date Written: May 9, 2010
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
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