Feb 6, 2011
On Presentism and the Use of a Transhistorical Vocabulary
Since the passage of federal health insurance reform legislation, and with growingrecent intensity, many people have argued that an individual mandate for the purchase of private goods is established in American legal custom by the mandate, in the early republic, for the purchase of weapons in the course of militia duty. No one claimed in 1792 that the terms of the Militia Act exceeded congressional authority; eleven years before Marbury v. Madison, not one person trooped down to a federal courthouse and filed briefs asking a judge to declare the law unconstitutional. Case closed!
What I have tried to show is that people at the time absolutely did contest the legitimacy and appropriateness of the militia mandate. They didn't do it the way a law school professor would do it in 2011; they didn't sue the government. They did it in the vocabulary of the time, with the tools available to them in their own historical moment.
I have shown, in previous posts, that entire towns simply declined to participate in legally mandated action, while others who gestured at compliance revealed the limits of their compliance when called to put it into action during wartime. Meanwhile, delegates at the Hartford Convention concluded that if the Constitution allowed the drafting of militiamen for an invasion of Canada, the New England states could not allow themselves to remain subject to its authority; they argued for a choice between secession or a constitutional convention to radically alter the terms of the document.
I am informed in comments, with exhausting persistence, that I am allowed only to say whether or not the Militia Act was declared to be unconstitutional. This is a presentist framing of a reductive question, and a silly way for historians to think about the past.
What I have tried to show is that people at the time absolutely did contest the legitimacy and appropriateness of the militia mandate. They didn't do it the way a law school professor would do it in 2011; they didn't sue the government. They did it in the vocabulary of the time, with the tools available to them in their own historical moment.
I have shown, in previous posts, that entire towns simply declined to participate in legally mandated action, while others who gestured at compliance revealed the limits of their compliance when called to put it into action during wartime. Meanwhile, delegates at the Hartford Convention concluded that if the Constitution allowed the drafting of militiamen for an invasion of Canada, the New England states could not allow themselves to remain subject to its authority; they argued for a choice between secession or a constitutional convention to radically alter the terms of the document.
I am informed in comments, with exhausting persistence, that I am allowed only to say whether or not the Militia Act was declared to be unconstitutional. This is a presentist framing of a reductive question, and a silly way for historians to think about the past.