In the Old Days, Everybody Pulled Together

by Cliopatria

Jack Balkin, a professor at Yale Law School, arguing on February 1 that the health insurance mandate is comparable to the universal militia of the early republic:

The requirement to join the militia (and purchase arms for the defense of the state) was an aspect of civic republicanism -- the political idea that citizens had a duty to work toward the public good and make sacrifices on behalf of their fellow citizens and the republic (the res publica, or public thing). Hence citizens were automatically made part of the militia, and this mean that they might be called upon to lay down their lives for their fellow citizens and the republic. The country was founded on this civic republican ideal as well as a belief in individual liberty and democratic self government.
What is lost in the debate over the individual mandate is that the point of the individual mandate is also civic republican in nature. It requires citizens to make a far less significant but also public-spirited sacrifice on behalf of other Americans who cannot afford health insurance.

This is a frequently made comparison, lately, and I am saying that it does not work, as it is based on a gross simplification of what the militia actually was and how it actually worked. This comparison is being made by people who don't know enough about the militia to make it.

The universal white male militia collapsed under substantial and sustained conflict about its purpose and the source of its controlling authority. Militiamen frequently insisted that they were associators, bound together as members of a community to defend one another. This belief had important roots in violent revolution.

Government officials (who initially wanted to establish" camps of discipline" to shape men to the habit of obedience) argued in response that the militia was an instrument of state authority, not of community. In courts martial, militiamen frequently asserted a right to disobey orders from superior officers based on local custom, and frequently lost the argument. Jack Balkin is correct that militiamen knew"that they might be called upon to lay down their lives for their fellow citizens and the republic." But he's missing a whole other layer of discussion about who could require them to do that, and how.

Meanwhile, the legacy of the revolutionary militia was not that it represented a wholesome joining together of common-minded republican citizens; rather, as John Shy wrote, the revolutionary militia"was, in its origins, less a draft board and a reserve training unit than a police force and an instrument of political surveillance." Men associated as a force that could perform acts of violence on behalf of a community, and then used coercion and force to police the sentiment of their fellow citizens. A health insurance mandate is like this?

Look around: many, many people have argued that the health insurance mandate is comparable to the militia mandate of the early republic. That comparison misses most of the details of the example being used, and harms the cause into which it has been drafted. If the militia of the early republic represents a civic ideal founded on widely shared notions of civic republican duty, then what happened at the Hartford Convention? The peg doesn't fit the hole.

A note to commenters: If you think this is a right-wing argument, you are not paying attention. Spare me.

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More Comments:

Michael Charles Benson - 2/21/2011

I think that will give you an idea of where these kinds of arguments are coming from. It also deals a ton with militias. You will frequently see arguments like "dictionary X from year Y defined this term as D, so that must be what they meant." Never mind worrying about whether anyone read those dictionaries...

Chris Bray - 2/7/2011

And I do just want to say again that this comment seems to speak to Winkler's constitutional framing pretty effectively, so it covers a useful point I hadn't set out to address.

Chris Bray - 2/7/2011

"Chris was holding up his assertions as a counter-argument to Winkler..."

Never. My argument from the beginning was that Winkler was doing history like a lawyer: framing his question narrowly enough to win his point, but missing all the meat of the topic. And so my first post concluded that "The policy failed, entirely and unmistakably," after arguing that Winkler was correct if you "avoid noticing anything that any actual human beings ever did in reality."

I never argued over the adjudication of the constitutionality of a 1792 law, which would be like arguing over how many people enlisted in the Air Force in the 1840s. I argued over the practical contest that followed the law and led to its failure -- the shaping of law and policy by what people did.

FWIW, I would never have raised the comparison if I hadn't seen it made over and over again.

Chris Bray - 2/7/2011

"I'm learning some history from what Chris writes..."

That's what I was hoping for, and thanks for saying so.

David Silbey - 2/7/2011

Surely this is two different arguments, which only join at the very top.

Well, yes, that was my point. Chris was holding up his assertions as a counter-argument to Winkler, when, in fact, they were simply beside Winkler's point. If he'd framed it as a "Winkler is correct, but does not extend his examination far enough," then it would have been a much more interesting (as well as logically sound) argument.

but the argument is getting a bit tedious.

Yes, it has been.

Jonathan Jarrett - 2/7/2011

Surely this is two different arguments, which only join at the very top. Chris is arguing that a universal mandate is historically a shaky-as-hell way of getting something to happen. Of course things have changed with the state's ability to enforce (for example, taxes, a system through a supposedly-universal levy is made) but the history seems fine from here.

Silbey, and before him Winkler, are arguing that the universal mandate that has been accepted is not an unconstitutional thing to demand of the people of the USA, because such a thing has been done before. And here, Chris's historical example actually serves both sides, because while Chris finds it easy to find examples of the prior mandate being abused or ignored, he has also cited several examples of defaulters being cited in the courts and found guilty. The law stood, every time. It was just useless. So as long as Silbey and Winkler argue about legal precedent, and Chris argues about historical precedent, you're both right and will continue to miss each other in the tilt.

Of course it complicates when one starts to read Chris's argument as one that suggests that the new mandate is doomed to failure, and should therefore be reconsidered. That's an argument I haven't yet seen Silbey engage with, but then Chris hasn't explicitly made it, perhaps because he sees a problem in analogising from the structures of state authority of 1792 to, you know, the FBI and so on. I would certainly see a problem there and to make the argument into a political point Chris would have to bridge his argument over it.

Equally, if Silbey were making a point other than "Chris is missing the point", he would also have an argument to make against legality not equating to possibility. It could be legislated that every married couple should have sex daily but that's not the same as being able to enforce it. And then there's another step about whether it's actually even a good idea. But Silbey isn't going there and it doesn't look as if Winkler is either.

Until either of you do make such a step, though, you're both quite safe on either side of the river and maybe you can stop firing blanks at each other meanwhile. I'm learning some history from what Chris writes (and some might say that's why we're here), but the argument is getting a bit tedious.

Chris Bray - 2/5/2011

If you can address these questions, I'll consider the possibility that you have something of value to contribute. In the interim, I assume that you're just making noise.

Chris Bray - 2/4/2011

David, I'm done with you. You aren't reading. You're not making an argument. I've asked you three times in three ways to clarify your argument or arguments, and you've refused or ignored all of those invitations. I've repeatedly defined my argument and my intent, and have said explicitly that I am not examining the question of constitutionality. You're throwing out word clouds -- the kind of chickenshit wordplay that academics find so impressive. It's beyond dull.

I've built a discussion about the functioning of the early militia and the arguments over authority that people had at the time, and I've done that using historical examples (and with historiographic references). You haven't. You're boring.

David Silbey - 2/4/2011

"Look around: many, many people have argued that the health insurance mandate is comparable to the militia mandate of the early republic"

Many people have made the point that the founders--as shown by the militia mandate--considered such individual mandates constitutional. They have not considered the other details because those details are essentially irrelevant to the issue of whether the mandate is constitutional. You still haven't shown the connection.