As a legal argument against an act of Congress, “it’s unprecedented” does not carry all that much weight. After all, every first use of a legitimate congressional power was obviously without precedent. And there is, in the nature of things, no reason that such a first instance could not occur many years after the power itself was called into being by the Constitution.

 

So when the individual mandate to purchase health insurance, now at issue in the Obamacare case before the Supreme Court, is denounced as unprecedented, that’s hardly a slam-dunk argument. It’s just the beginning of one. What one must show is that the unprecedented mandate is also improper — an illegitimate claim of authority under the Constitution. “It’s unprecedented” can add some rhetorical oomph to the more important claim of illegitimacy, since a plausible reason why no earlier Congress attempted such a mandate is that it would have been understood to reach too far.

 

By the same token, the ability to say “but there is a precedent!” is a kind of Holy Grail for Obamacare’s defenders. Historic enactments that can be analogized to the individual mandate are valuable currency in a legal system that is based on precedent. Better still if these historic acts went unchallenged in their day. And best of all if they date from the generation of the Founders themselves — when the earliest Congresses and presidencies were filled by men who had participated in writing, ratifying, or otherwise arguing about the creation and meaning of the brand-new Constitution.

 

So Harvard law professor Einer Elhauge must feel mighty pleased with himself for having offered three examples of “mandates” from the first decade of the Constitution’s existence. In a New Republic article, Elhauge sketches these three examples as follows...