Merchant Seamen In 1798, Health Care On Federal Enclaves, And Really Silly Journalists.

By Publius Huldah.

A little knowledge is a dangerous thing; and no one illustrates this Principle better than Forbes’ writer Rick Unger in his article, “Congress Passes Socialized Medicine and Mandates Health Insurance – In 1798”,  Washington Post writer Greg Sargent, and Georgetown University history professor Adam Rothman.

In 1798, Congress passed An Act for the relief of sick and disabled Seamen which required the master of every American ship arriving from foreign ports to any port of the United States, and American ships engaged in the coastal trade using those ports, to pay a small fee to the federal government for every seaman employed on his ship. The funds so raised were used to care for sick and disabled seamen in the marine hospitals established in the ports of the United States.

So!  Unger cited this 1798 Act and chortled with glee that our Framers supported “socialized medicine”; and so the “political right-wing” should stop “pretending” that our Founding Fathers would oppose obamacare.

Greg Sargent chimed in to the same effect, and quoted history professor Adam Rothman for the idiotic propositions that

“…the post-revolutionary generation clearly thought that the national government had a role in subsidizing health care … that in itself is pretty remarkable and a strong refutation of the basic principles that some Tea Party types offer … This defies a lot of stereotypes about limited government in the early republic.”

But Unger’s, Sargent’s and Rothman’s statements are so transparently ignorant they can be disposed of in a few paragraphs:

Congress’ Three Categories of Legislative Powers

One:  Congress has only limited legislative powers over the Country at large. These legislative powers are restricted to war, international commerce & relations; and domestically, the creation of an uniform commercial system:  weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery. Various Amendments granted to Congress certain powers over civil rights. These enumerated powers are the only areas wherein the national government has lawful (constitutional) authority over The States and The People in The States.  In all other matters [except those listed at Art. I, Sec. 10] the States and The People retained supremacy, independence, and sovereignty.

Two:  Article I, Sec. 8, clause 17, U.S. Constitution, says:

“The Congress shall have Power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislatures of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”  [boldface mine]

“Exclusive Legislation in all Cases whatsoever” over “dock-Yards”. Do you see?  It is this clause which grants to Congress authority to establish marine hospitals on dock-Yards belonging to the United States.  Congress has a general legislative authority over the federal enclaves, such as dock-Yards. That legislative authority is limited only by the Bill of Rights.

In Federalist Paper No. 43 at 2., James Madison explains in three short paragraphs [read them!] why the federal government must have “complete authority” over the federal enclaves listed at Art. I, Sec. 8, cl.17.

Alexander Hamilton in Federalist No. 32 (2^nd para), comments also on the grant of “EXCLUSIVE LEGISLATION” over the federal enclaves [capitals are Hamilton’s] in “The last clause but one in the eighth section of the first article…”

Do you see?  That grant of “exclusive legislation” is restricted to the federal enclaves.

Three:  Article IV, Sec. 3, cl. 2,  grants to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…”  Madison shows in Federalist No. 43 at 5. that “the Territory” referred primarily to the Western Territory before it was formed into States.

That’s it, Folks!

So!  While Rick Unger crowed in his article,

“While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.”

It’s not difficult at all!  All one has to do is read Art. I, Sec. 8, cl. 17, which permits Congress to make such a law for American ships using the dock-Yards belonging to the United States. That’s what “exclusive Legislation in all Cases whatsoever” means.  Do you see?

Congress has no such legislative authority for the Country at large. There, it is limited and   enumerated. PH

April 5, 2012

Postscript Added April 7, 2012:

Attorney Hal Rounds (Memphis, TN), gave me the following fascinating information:

“My GGrandfather was a U.S. Consul, his last post was in Nova Scotia. Among his records is a series of reports regarding how he arranged for the isolation, shelter, and nursing in Nova Scotia of an American sailor ill with smallpox. The ship left, after disembarking the now useless – and contagious – victim. This care necessitated local expenses and hiring. I do not know what, if any, of the cost was borne by the ship owner, and what portion was by the U.S. Government. (The sailor survived, and eventually was sent on his way.)

But the duties of a nation extend to some services to its citizens abroad. These are, of course, governed by treaties and customary traditions. So, a law requiring a ship operator to insure his crew fits in with the federal authority to regulate “commerce with foreign nations” and its jurisdiction over U.S. flag shipping outside, or traveling between, state jurisdictions. Because ships will dump sick sailors wherever they may make landfall, and the locals have the burden of dealing with the victim. Their care then raises the legal right to compensation for their services, which the law of nations allows to be levied against the nation, not just the owners, of the ship.

The requirement in 1798 addressed these concerns. It was not a requirement to subsidize health care for the citizenry at large, but to indemnify the federal government against claims that would arise in the course of the U.S. being a nation engaged in international trade, and, under the law of nations, responsible for the burdens its commerce threw upon foreigners; and to accommodate the demands the foreign vessels would dump on us.”

THANK YOU, Hal!  I showed how Congress had the authority to make the law; you explained why Congress needed to make the law, and provided additional constitutional authority for Congress to make the law.  PH