Friday, September 2, 2011

About that 1798 Act for the Relief of Sick and Disabled Seamen

Supporters of the Democrat health care bill (the bill that was passed by Congress and signed by the President, last year) have sometimes cited a 1798 law to provide medical care for "seamen" as a precedent, supposedly proving that the founding generation was in favor of government-provided healthcare funded by taxation.  Their use of that law is misguided, for three reasons:

First, to show that the Fifth Congress took an action does not, in any way, establish the constitutionality of that kind of action.  The Fifth Congress, as much as any Congress, was capable of making vain, unconstitutional gestures which it very well may have described as laws.  The fact that it did something, therefore, is not evidence of its constitutionality.

Second, although I would have trouble justifying and explaining this act under any of the listed powers of Congress, according to the book cited (page 101 - 117) as a source for the text of the act, there was, under maritime law, a traditional and established obligation of the "ship" (considered to be its own person, in the law) to care for and provide for the people of the ship, including curing its sick.  The Constitution does not expressly give Congress a power to make or change maritime law, but Article III definitely contemplates its existence.  As a result, even if the 1798 act was unconstitutional, it is different from the health care bill in that it only gives a more specific form to a duty that already existed in the law.  Additionally, this particular duty makes sense, considering the relationship of the people on the ship to the ship itself; there was a contractual relationship between them, and to whatever extent it was established that this duty existed, it would have been a part of these agreements.

In order to more completely give complete effect to this duty, Congress evidently imposed a requirement that these ships contribute to some sort of a general fund for that purpose.  This does not make the act constitutional, if it was unconstitutional, nor does it make it appropriate, but this has to make it more appropriate than if Congress had simply imposed a new, unjustified obligation on ships.   It certainly differentiates it from imposing a new, unjustified obligation on everyone, just because they exist.  It may not have been an appropriate action for the federal government, but it was, at least, an appropriate action for a government.

Third, as ships are dependent upon government and law for their very existence as persons, it might be argued that the imposition of reasonable regulations on them as a condition of that privilege is justified.  Again, this does not make it an appropriate action for the federal government, but it does make it a more appropriate action for a government, and it distinguishes this act from one which imposes an obligation on human beings, as a condition of their own existence.

In conclusion: upon closer inspection, the two acts are dissimilar, and the 1798 act is no precedent for 2010's health care bill.


  1. True, the fact that Congress has passed an act it not a sufficient basis to conclude that the act is Constitutional. However, it's my understanding that it may be presumed Constitutional until such time as the Supreme Court issues a decision to the contrary. This is not a defense of the PPACA which I believe to be without president and Unconstitutional. The seamen's act is measured in impact and limited scope and application. The PPACA is universal in it's application to every person within the reach the US merely for the privilege of drawing breath within it's borders and virtually unbounded in it's potential to regulate any behavior with the slightest, most remote connection to our health.

  2. As a practical matter, it is true that the act will probably be treated as constitutional until and unless the Supreme Court strikes it down. However, if it violates the Constitution, I would say that it has been in violation of the Constitution all along.