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Posted at 5:54 PM ET, 02/ 2/2011

The tyranny of 1792

By Ezra Klein

In South Dakota, Rep. Hal Wick introduced a bill mandating that the state's residents purchase firearms so they could protect themselves. But he's not serious about it. “Do I or the other co-sponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,” he explained. But Wick made two mistakes.

First, South Dakota is a state. As any federalist could explain, it can do lots of things that the federal government cannot. This is why no one is questioning the legality of the individual mandate currently operating in Massachusetts.

Second, as Jack Balkin points out, the federal government actually did tell American citizens that they had to purchase firearms. Here's the Militia Act of 1792:

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia … That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service ...

Balkin, a Yale Law professor, takes the opportunity to make a broader point:

The notion that being asked to either buy health insurance and make health care accessible for one's fellow citizens -- or to pay a small tax -- is a form of tyranny akin to George III's regime is simply bizarre: it shows how perverted and twisted public discourse has become in the United States. The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness.

By Ezra Klein  | February 2, 2011; 5:54 PM ET
 
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Comments

"The assault on the health care bill is not a defense of liberty. It is a defense of selfishness."


it certainly is.
it is a defense of selfishness. and there is no shortage of that.
it is this mentality that is weakening our culture.
people that care about themselves, and dont care about others.

Posted by: jkaren | February 2, 2011 6:02 PM | Report abuse

Mr. Balkin is full of "you know what!" Americans do take care of others! What is shameless is the people with their hands out that want everything given to them by other people. Show some initiative and get off your butt! No one is guaranteed cradle-to-grave security and happiness. Take care of those that cannot help themselves..end of story!

www.eclecticramblings.wordpress.com

Posted by: my4653 | February 2, 2011 6:32 PM | Report abuse

"What is shameless is the people with their hands out that want everything given to them by other people. Show some initiative and get off your butt!

only a callous, deeply selfish and unintelligent person would write something like this.
only a person, who has suffered little, but can easily endure the suffering of others, because he/she is blind to it.
but one day, you will not be able to take care of yourself, and you will eat your words.

Posted by: jkaren | February 2, 2011 7:00 PM | Report abuse

"What is shameless is the people with their hands out that want everything given to them by other people. Show some initiative and get off your butt!"

i bet you have no qualms about taking what the government has to offer you.
and i am willing to bet that many people in need of the help of the government have worked a lot harder than you have, in your lifetime.
dont speak the way you do, about the helpless and the poor among us. you may be in trouble one day, and have to learn the lesson of humility and compassion, the hard way.


Posted by: jkaren | February 2, 2011 7:03 PM | Report abuse

"What is shameless is the people with their hands out that want everything given to them by other people. Show some initiative and get off your butt!"

you shame all of us...as americans, when you speak like that.
you show a lack of compassion, a lack of brotherhood shining from sea to shining sea....a lack of the kind of sentiments etched on the statue of liberty.
you diminish everything that is great and good about the united states of america when you speak like that.
your sentiments are ugly and unamerican, when you speak about the last, the least and the lost among us, and characterize them in that way.
your statement is what this country does not stand for.

Posted by: jkaren | February 2, 2011 7:06 PM | Report abuse

"or to pay a small tax -- is a form of tyranny akin to George III's regime is simply bizarre"

What evidence is there that George III was more tyrannical than the modern American government? Sure, we didn't vote for his rule, but how were his government's actions significantly worse?

The colonists main objections were taxes (small ones at that) and restrictions on their liberties (e.g. Proclamation of 1763, the mandate to quarter British soldiers, limits on free trade). Taxes and restrictions on liberties still exist, and a plausible argument could be made that they are far worse today than 250 years ago.

"The assault on the individual mandate is really an assault on the public duty to assist other Americans in need"

There is no such duty. One can be charitable - and charity is praiseworthy - but one also has the right not to be. There is no duty for an individual to assist individuals in need. The public is nothing but a collection of individuals, and thus there is no public duty either.

If there is a duty for us to do everything we can to help those in need, then more or less all of us are in violation of such a duty. It's hard to imagine a duty that requires us to help only partially - either we are to be servants of others or servants of ourselves.

Most of the world's population is much worse off than even low income Americans. From a utiiltarian perspective (or for that matter an altruistic one), it would make more sense to force Americans to spend their time and money helping Africans in need than to force a richer set of Americans to help another. If you feel a duty to help those in need, the need is concentrated beyond our shores.

"The assault on the health care bill is not a defense of liberty."

It is absoultely a defense of liberty - the ACA is an affront to liberty. I'll admit not all Republicans are, in their heart of hearts, motivated by liberty, but many conservatives are.

"It is a defense of selfishness."

Is Balkin's bank account emptied on account of his performing his duty to help the poor? I think not. He can go pound sand for all I care.

Balkin can keep being selfish with his own money for all I care - it's his right - but I'll be damned if he demands others be forced to provide contributions to assuage his own guilty conscience.

Posted by: justin84 | February 2, 2011 7:07 PM | Report abuse

A conscription act that ordered conscripts be armed in the constitutional capacity of the common defense is proof that the federal government can order people to buy insurance under the commerce clause???

Not seeing it. But I know you really want to...

Posted by: whoisjohngaltcom | February 2, 2011 7:08 PM | Report abuse

"What is shameless is the people with their hands out that want everything given to them by other people. Show some initiative and get off your butt!"


i think you owe an apology to many of your hardworking fellow americans who have suffered misfortune and bad luck, and are suffering right now.
you owe them an apology.
it is sorrowful that they have to read your words.

Posted by: jkaren | February 2, 2011 7:09 PM | Report abuse

"Second, as Jack Balkin points out, the federal government actually did tell American citizens that they had to purchase firearms"

Also an affront to liberty. And I don't care whether or not such a law was constitutional either - it was wrong.

In a way, I do hope the mandate in South Dakota passes. And I hope it requires that these guns be kept loaded at all times, and that children by trained in the use of firearms from a reasonable age.

Maybe then democratic housewives who think guns are dangerous and don't want them in their home might think twice about the wisdom of imposing a mandate on people regardless of their values or preferences.

Then again, such a law will probably just be used as precedent to support some other silly mandate in the future, and in any case it is wrong to advocate the violation of rights simply to teach people a lesson.

Posted by: justin84 | February 2, 2011 7:28 PM | Report abuse

You are not forced to buy anything.

You have a choice to pay a penalty instead, and then have society aide you later should you fall seriously Ill.

I don't see the loss of liberty.

The only loss of liberty would be the 45000 annual deaths for those who die because of lack of care should ACA get sabotaged by anarchists.

Indeed, sabotaging a health care system and causing so many deaths and suffering can only be done by anarchists, people who refuse to try to build a better way of life and accept that in a Democracy we all win some and we all lose some.

You anarchists want to win everything and sacrifice nothing.

Posted by: lauren2010 | February 2, 2011 7:29 PM | Report abuse

Common defense

General welfare

They are EQUALLY important

Posted by: lauren2010 | February 2, 2011 7:38 PM | Report abuse

Justin

Banning child porn is also a loss of liberty to those who watch it, but we do it to save people.

Stop your whining

America has never been a country where all liberties are protected.

There are even limits to freedom of speech though it is explicitly protected.

In a modern society, those who dont have health insurance are a drain on us all and need to buy it or pay a penalty.

Get over it.

Posted by: lauren2010 | February 2, 2011 8:02 PM | Report abuse

jkaren....when you come out of your progressive haze, let me know! Your ideology is what is paralyzing this country! If you think people don't take advantage of the "system" then you have a great deal to learn about how life really works!

Posted by: my4653 | February 2, 2011 8:27 PM | Report abuse

Well, a state can't pass an unconstitutional law either. Unless the ONLY argument against the individual mandate is the 10th Amendment, you can't reconcile a state being allowed to pass a law that the Fed Govt can't.

Posted by: DDAWD | February 2, 2011 8:32 PM | Report abuse

"jkaren....when you come out of your progressive haze, let me know! Your ideology is what is paralyzing this country! If you think people don't take advantage of the "system" then you have a great deal to learn about how life really works!

Posted by: my4653 "

no.
You have a Lot to Learn about How Life Really Works.
if you knew how life really works, you wouldnt be saying the selfish, smallminded, insulting and arrogant things you are saying.

the only reason you can speak that way, is because you dont know the road of suffering.
and i would be willing to bet that you are one of the people who takes advantage of the system, and takes everything they can...just knowing you from what you write.
you will walk a road of regret one day. when you are on the other side. and then, you will not be saying the things you say, because then, you too, will understand How Life Really Works.
you better count your blessings, because we dont leave this trip here, without learning how things really work.
we learn compassion for suffering, and humility. one way or the other. it is your lack of depth that allows you to speak as you do, about those walking a harder path than yours, at this moment.

Posted by: jkaren | February 2, 2011 8:44 PM | Report abuse

"What is shameless is the people with their hands out that want everything given to them by other people. Show some initiative and get off your butt!"


you still owe your fellow americans who are suffering in hard times, an apology for that statement.
your conscience has checked out.
the sooner you apologize, the sooner you will be on the road to knowing How Life Really Works.
and you dont, right now.
and i bet, you are one of those people, taking whatever you can get, whatever comes your way from the government.

Posted by: jkaren | February 2, 2011 8:49 PM | Report abuse

jkaren...I am done pushing a rope! Have a good life....I hope the government takes good care of you!

Posted by: my4653 | February 2, 2011 8:57 PM | Report abuse

"jkaren...I am done pushing a rope! Have a good life....I hope the government takes good care of you!"


this government has taken excellent care of me.
and i am proud to make my contribution to help americans less fortunate than myself, without whining and complaining about it.
i will pay my way, and the way for others, as best as i can, to see our country stronger, healthier, more educated and therefore, more secure.
i believe in helping others, and that is what makes a better united states of america.
not turning my back on my neighbors, my community, my country because i only think about my own needs.
caring and protecting the weakest among us, is what makes a country, humane and strong.

Posted by: jkaren | February 2, 2011 9:02 PM | Report abuse

How is that position that the Constitution is a Living Document paradigm working out for you Ezra?

Posted by: underhi2p | February 2, 2011 9:26 PM | Report abuse

jkaren...your as full of crap as a christmas turkey. I bet your all for amnesty for all these Illegal Aliens in this country that suck up an unbelievable amount of our tax dollars also.
Well I have personaly had with your kind and the lilly livered liberals in congress, you mandate social welfare for every crying whining soul in this country regardless of their ability to work for a living. You expect us hard working middle income citizens to pay from cradle to grave for those that have no other ambition in life other than to suck the system dry because you say their entitled to it. We lose jobs left and right and all you can say is that Americans won't do these jobs so let the Illegal Aliens in to do it for us. That's the biggest lie you Progressive Liberal Democratic Socialist ever came up with.
You want more taxes, then just make a contribution of one half of your pay to the IRS, they will gladly accept it no questions asked. But don't try shoving crap down my throat, like ObamaCare, you want it you pay for it. I'll go to jail first and your tax dollar will be well spent keeping me alive.
The votes that passed this Bill were bought and I consider it an illegal vote that 85% of Americans opposed. ObamaCare has done nothing but cost me money in higher out of pocket expenses for healthcare.

Posted by: jhnjdy | February 2, 2011 10:04 PM | Report abuse

The Senate voted today to repeal the Form 1099-MISC reporting requirements in Obamacare. That was one of the ways Mr Klein promised us he was paying for this monstrosity he loves.

Plenty of people said at the time these reporting requirements would raise little money, but mercilessly harrass small businesses. Yet the Dems put the requirement in the bill to pretend they were "paying" for ObamaCare.

Increased Form 1099 reporting was yet another of ObamaCare's budget gimmicks, lies, phony statistics, and promises.

Posted by: ElmerStoup | February 2, 2011 10:47 PM | Report abuse

Justin84:

What evidence do we have that George III was more tyrannical than the current government? It's very obvious: it's called The Declaration of Independence. The colonists' objections to British rule were far more serious than a few small "taxes and restrictions.". Perhaps you should reacquaint yourself with it and American history while you're at it.

BTW, here are just a couple of those quibbling restrictions:

"He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy of the Head of a civilized nation."

Posted by: co8906 | February 2, 2011 11:17 PM | Report abuse

"I'll go to jail first and your tax dollar will be well spent keeping me alive.

after reading what you wrote, in the event of your going to jail, i would consider the money well-spent.

Posted by: jkaren | February 2, 2011 11:43 PM | Report abuse

"What evidence do we have that George III was more tyrannical than the current government? It's very obvious: it's called The Declaration of Independence. The colonists' objections to British rule were far more serious than a few small "taxes and restrictions.". Perhaps you should reacquaint yourself with it and American history while you're at it."

I'm well versed in American History. The Declaration was written after full scale rebellion had begun - Lexington and Concord occurred more than a year prior to the writing of the Declaration. Many States had ratified new Constitutions. Washington had invaded Canada. Congress had already issued its own paper money. There were already thousands of British casualties, out of a force far smaller than what we have deployed today in Afghanistan.

So to be consistent, you'd have to take into account what the federal government would do today if thousands upon thousands of citizens were in open, somewhat successful rebellion against the federal government. Say militia somehow defeated the 1st Infantry Division in open battle and the state capitals were all falling to armed citizens. Or for that matter, consider what the federal government did during the Civil War. It certainly waged war upon the southern states, and burned their towns, ravaged their seas and destroyed the lives of the southern people.

Given that there is no organized rebellion against the government today, it is then appropriate to compare the actions of the present American government to past British government prior to the onset of hostilities.

Posted by: justin84 | February 3, 2011 12:51 AM | Report abuse

I like our government. The do a lot of good things. They have a huge history of accomplishment, of doing big things, wonders really. Hoover dam, Panama canal, continental railroad, interstate highway, Hubble telescope, man on the moon, the internet, electrification of rural America, mars rovers, coast guard rescues, national parks, wilderness areas, CDC, FDA, FAA, PBS, the Smithsonian, Mount Rushmore, clean rivers, clean air.

I even love the post office. For 44 cents I can send a letter clear across the country in just a few days. Fed Ex charges $14 for the same service. We get such a tremendous value when we use common funding for common cause.

Posted by: Amminadab | February 3, 2011 1:51 AM | Report abuse

"Common defense
General welfare
They are EQUALLY important"

Then I guess they should have written a bill which reflects that, huh?

As it stands, they've written a bill demanding that citizens purchase something from private entities -- commerce, not welfare.

Posted by: whoisjohngaltcom | February 3, 2011 6:34 AM | Report abuse

@DDAWD:

"Well, a state can't pass an unconstitutional law either. Unless the ONLY argument against the individual mandate is the 10th Amendment, you can't reconcile a state being allowed to pass a law that the Fed Govt can't."

That's the problem; there is no argument against the mandate besides the 10th.

And at this point it's been made clear that many, if not most, of those arguing against the mandate's constitutionality have no idea what the argument is based on. There is no possible interpretation of the South Dakota proposal, or the Vinson decision, or half the anti-mandate posts on here that does not lead to the conclusion that these people have no idea what the Constitution says.

Posted by: eggnogfool | February 3, 2011 9:00 AM | Report abuse

justin84, like all Tea Party hacks, your historical knowledge of colonial America is lacking. the American Revolution wasn't based on taxes (which every society has) but rather on taxation without representation.

most Tea Party folks aren't complaining about disenfranchisement of the right to vote (i.e., for convicted felons), but rather are encouraging more of it. you, my friend, are the Redcoat, not the Patriot.

Posted by: minister1976 | February 3, 2011 11:37 AM | Report abuse

justin84: "There is no duty for an individual to assist individuals in need. The public is nothing but a collection of individuals, and thus there is no public duty either."

Your argument is sophistry. You confuse the meaning of "duty" as if it's a legal term. For Balkin-- and for me-- "duty" means a moral obligation to help those who need help. In this case, it means acting on the belief that health care is a human right deserved by all no matter one's status or one's financial situation.

Often we take those ideals of "duty" and codify them into law. That is what the health care bill has done.

We progressives believe that the Constitution's Preamble is not just nice words, but have profound meaning for all Americans. Those words obligate us-- demand of us-- as Americans to make it our duty to level the playing field of opportunity so that more and more Americans can "secure the blessings of liberty" because we have done all we can "to form a more perfect union." That's not a handout; that's giving a helping hand.

It's a very American ideal. It's a very human ideal. You might try it.

Posted by: tttvance | February 3, 2011 1:30 PM | Report abuse

"Your argument is sophistry. You confuse the meaning of "duty" as if it's a legal term. For Balkin-- and for me-- "duty" means a moral obligation to help those who need help."

There is no moral duty to help anyone. It is actually only a legal duty, imposed by government.

Have you bled your bank account dry, and spent most of your time trying to help others? No? Why are you violating your moral duty? People have died because you didn't do everything you could to save them.

You own actions imply you understand and believe in the right to live your life as you see fit, but your emotions make you feel bad about others and so you wish to be charitable with other people's money. Be as charitable as you like - I encourage it, and feel free to encourage others - but leave the force of all kinds out of the picture.

"In this case, it means acting on the belief that health care is a human right deserved by all no matter one's status or one's financial situation."

Except there is no natural right to health care. Health is a service, and it must be produced. If a person has a right to health care, then they have the right to steal from and enslave others in order that they have it.

"Those words obligate us-- demand of us-- as Americans to make it our duty to level the playing field of opportunity"

They demand nothing of me. America is (or was, apparently) about individuals being free to pursue their own lives and find their own opportunity - not to have their every wish handed to them on a silver platter.

Posted by: justin84 | February 3, 2011 6:16 PM | Report abuse

"justin84, like all Tea Party hacks, your historical knowledge of colonial America is lacking. the American Revolution wasn't based on taxes (which every society has) but rather on taxation without representation."

The problem Americans had with these taxes was that their collection was effective. Do you really think that if Parliament had given a seat to the American colonies that they'd be like "oh okay, we're represented now, no problems - tax away"?

I'll give you that in general, the founders were a principled bunch, so it is entirely possible they would have accepted a token amount of represention as sufficient. That said, somehow I doubt token representation was what got them all fired up.

Taxation without representation was a nice slogan, but the tax was the bothersome part. American citizens rebelled over the whiskey tax too - the slogan changed, but the tax on Americans by Americans was still seen as worth a confrontation.

In any case, I'll take a government which fails to tax me over one in which taxes me with "representation" any day.

As an aside, hardly anyone was even able to vote in England and the time. Parliament argued that the Americans were virtually represented in Parliament, much like the other 97% of British subjects who couldn't vote at the time.

As it is, libertarians are virtually represented today. There isn't a single politician in the federal government opposed to all taxes - not even Ron Paul goes there.

Today, we are faced with a bunch of neighbors voting our property away for their own use. If ten of your neighbors were going to put ownership of your property to a vote, would it really mean much if they offered you a vote as well? Would you accept that as legitimate? Does having 100 million neighbors carry out such a vote make it more legitimate?

"most Tea Party folks aren't complaining about disenfranchisement of the right to vote (i.e., for convicted felons), but rather are encouraging more of it."

I don't care about the ability to vote for team Nike or team Reebok. I care about rights, not which political party gets to abuse my liberties.

"you, my friend, are the Redcoat, not the Patriot."

I care very much for the original American idea, but I don't think much of the State or its activities. The very limited legitimate purposes of the State could be done without initiating force or threatening to do so.

If you wish to call that unpatriotic or unamerican, go ahead.

Posted by: justin84 | February 3, 2011 6:51 PM | Report abuse

"National Security", then as now, is a claim that tends to allow what would otherwise be unConstitutional requirements. Were it otherwise, conscription (the Draft) would clearly be in violation of the 13th Amendment, which prohibits "involuntary servitude". I should think that it's obvious that the 1872 Militia Act falls into that category.

There are those who do not agree that the draft is somehow exempted, of course. (As a matter of fact, I am among them.) However, if you accept the draft, you cannot logically object to the Militia Act, as it requires only a monetary sacrifice, rather than the mandatory risk of one's very life.

The Health Care Act, on the other hand, does not fall into that "National Security" exception.

Posted by: FreeRoy | February 4, 2011 9:51 AM | Report abuse

justin84: You continue your sophistry: "There is no moral duty to help anyone: It is actually only a legal duty, imposed by government."

As you point out about Ron Paul, there are no pure libertarians. As much as you suggest you are self sufficient, desiring to be left alone, with no moral duty, totally free and beholden to no one-- as long as you are driving on public roads and buying products rather than making them entirely on your own, you are dependent upon both government and individuals. Once you do those things, like it or not, you have signed on to be a part of the American compact. And that includes paying your fair share of taxes that your representatives have voted on. That is not force; that is part of our privilege in living in a civilized society.

"Except there is no natural right to health care. Health is a service, and it must be produced. If a person has a right to health care, then they have the right to steal from and enslave others in order that they have it."

Your "If ... then" is pure nonsense. Rational people understand the difference between the right to have health care and "right" to steal. Didn't your momma tell you that without health, you don't have anything? Life, liberty and the pursuit of happiness-- all impossible without good health.

I trust the vast majority of the American people understand the importance and fairness of providing good health care for all.

Posted by: tttvance | February 5, 2011 3:36 AM | Report abuse

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