Obamacare, The Constitution, And The Original Meaning Of The Commerce Clause

Several lawsuits over the health-care reform's individual mandate hinge on interpretations of the constitution's Commerce Clause. This clause is widely believed to grant Congress broad power over national markets. But that isn't what the founders had in mind.

Does Congress’s power to regulate commerce permit it to mandate that all Americans purchase a health insurance policy? So far two federal district courts have answered “yes” and one has answered “no.” The courts’ opinions exhaustively discuss and interpret modern Supreme Court case law, but barely touch upon the history of the commerce power and the intent of the Constitution’s framers. Judges apparently fear that discussion of relevant history would not only cast doubt on the constitutionality of Obamacare, but also myriad federal laws based on the regulation of commerce.

The Commerce Clause, in pertinent part, provides that Congress has the authority “[t]o regulate commerce with foreign nations, and among the several States, and with the Indian Tribes.” No such power existed under the Articles of Confederation, which was the first constitution of the United States. This lack of power injured Americans in two principle ways.

First, the Confederation government could not retaliate when other nations restricted access to their markets. As early as 1782, Alexander Hamilton complained that the Confederation Congress had no power to “preserve the balance of trade in favor” of the thirteen states. A commerce power would permit Congress to shut our ports to the ships of nations that did not welcome American ships and goods...