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Opinion >  Column

Eye on Boise: Use care when invoking Founding Fathers

BOISE – Idaho U.S. Rep. Raul Labrador reacted to Thursday’s U.S. Supreme Court decision on health care reform by saying the nation’s Founding Fathers would be “appalled.”

He wasn’t the only one invoking the Founding Fathers in the wake of the controversial decision. But David Adler, constitutional scholar and director of the Andrus Center for Public Policy at Boise State University, said a look at history suggests a different conclusion.

“In the 1790s, the Congress on two different occasions passed statutes that imposed health insurance mandates,” Adler said.

The first required the shipping industry to purchase insurance for its sailors to cover prescription drugs and visits to the doctor, Adler said, due to sailors’ frequent injuries and illnesses from scurvy and other causes.

“And then a few years later, because it was clear that that statute didn’t go far enough, Congress passed yet another statute to require ‘seamen,’ or sailors, to purchase hospital insurance. So those are two examples of an individual mandate in the health care industry” back in the 1790s.

The timing is key, because Congress at the time was “filled with people who wrote the Constitution,” Adler said.

Labrador’s statement on the court decision said, “The decision by the Supreme Court of the United States that Obamacare is constitutional undermines the concept of limited government embodied by the Tenth Amendment. Our founding fathers would be appalled that their vision of a limited government no longer exists.”

Adler said, “I think it’s hard to make that assertion.”

The Supreme Court even recognized in 1803 that decisions from early congresses that interpreted the Constitution carried extra weight.

In an 1803 case, Stuart vs. Laird, the high court wrote, “An interpretation of a constitutional provision by a congress contemporaneous with its framing is too strong and obstinate to be controlled.”

“That’s called the Rule of Stuart vs. Laird,” Adler said. “It’s never been overturned. … When an early Congress … interpreted the Constitution, its interpretation of the Constitution carried great weight, precisely because so many of the framers of the Constitution were sitting in Congress.”

Adler, former director of the University of Idaho’s McClure Center and now Cecil Andrus professor of public affairs at BSU, said, “It’s often the case that lots of people make assertions about what the framers intended, and there’s a certain veneration for the framers’ intentions among scholars and others. And that’s a well-held approach provided you can find some support for what the framers said about an issue. But when you engage in a discussion saying that the framers would have been appalled by this or that without any evidence, then it seems to be just an exercise in politics, trying to draw the majesty of the framers into your argument.”

He added, “Scholars wouldn’t do that. … Politicians might.”

From the trail

Gov. Butch Otter was out of the office all last week, participating in a multiday horseback trail ride, and that’s why he wasn’t available for comment on Thursday morning’s health care reform ruling. Nearly seven hours after the decision came out, his office issued a statement from him.

Spokeswoman Amy Wernsing said, “We spoke to the governor by phone.”

His chief of staff, David Hensley, said Otter doesn’t plan to call a special session of the Legislature in response to the ruling.

VA to take over site

Idaho is among 20 states that are part of a consumer protection settlement forcing the shutdown of a California-based website that targeted military veterans to attend for-profit colleges. The states charged that the company’s websites, including, were deceptive and misleading, giving the appearance that they were operated or endorsed by the U.S. government or military. They directed users only to the website owner’s clients, which were presented as “eligible GI Bill schools.”

As part of the settlement, the company, QuinStreet Inc. of Foster City, Calif., will pay $2.5 million, including $100,000 to reimburse Idaho for its costs to participate in the case, and the firm will relinquish the domain “” to the U.S. Department of Veterans Affairs, which will use it to educate service members about benefits available to them.

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