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The Act for the Relief of Sick and Disabled Seamen (ASDS; Peters Reference Peters1845, 605–6) was passed by the Fifth US Congress and signed into law by President John Adams in 1798. This law mandated that all sailors in American waters would pay into a collective federal fund, to be administered by the president, that would in turn provide sailors with medical care and construct hospitals to that end. This statute has been cited (e.g., Elhauge Reference Elhauge2011, Reference Elhauge2012a, Reference Elhauge2012b) as evidence that legislators of the early republic were more open to what came to be called the welfare state, as well as the nationalization of public policy, than contemporary scholars and jurists overwhelmingly assume. For their part, conservative legal scholars have forcefully denied this argument as anachronistic (Barnett Reference Barnett2012; Kopel Reference Kopel2010; Volokh Reference Volokh2012), insisting that the drafters of the ASDS would not have understood it to be authorized by an expansive and forward-looking conception of the “general Welfare,” but rather as an exercise of some much narrower constitutional provision, such as Congress’s authority to outfit a navy (e.g., Hamburger Reference Hamburger2012). I intervene in this debate by investigating whether the ASDS was an example of an active early welfare state rather than a narrow use of Congress’s naval power. I argue that members of the Fifth Congress had a more activist notion of Congress’s constitutional role in building a social welfare state than is often assumed, insofar as they were engaged in constitutional interpretation about the proper role and scope of national power. In my reading, the ASDS is not a debate over congressional naval power but rather a more general debate over the nature of the republic—what it takes to have a constitutional union with a national government looking out for the general welfare, not merely a loose compact between states. Accordingly, members of the Fifth Congress were self-consciously building a constitutional republic, thereby engaging in a form of constitutional development by means of departmentalism.
The ASDS implicates a lively debate regarding the nature of the state in the early American republic, one that concerns the nature of federal regulation and centralization before Reconstruction and the Progressive Era (e.g., John Reference John1997; Edling Reference Edling2003; Wilson Reference Wilson2008; King and Lieberman Reference King2009; Mashaw Reference Mashaw2012; Nackenoff and Novkov Reference Nackenoff2014; Gerstle Reference Gerstle2015; Larson Reference Larson2016). In their own ways, the authors who have contributed to this debate have suggested that national administrative capacities were more potent and integrated in the early republic than many today assume. Scholars of American political development have suggested that the early state’s robust activities and expansions have been obscured by myths about laissez-faire and sectionalism (e.g., Novak Reference Novak1996; Balogh Reference Balogh2009; Adler Reference Adler2012). Relatedly, scholars have argued that 19th-century reformers pursued egalitarian principles—particularly those concerning economic redistribution—which have erroneously come to be viewed as anathema to the thought of the early republic (Fishkin and Forbath Reference Fishkin2014; Fatovic Reference Fatovic2015). And, legal scholars such as Balkin (Reference Balkin2011, Reference Balkin2013) have argued that, as a multidimensional mode of interpretation, originalism does not necessarily yield the “small government” outcomes that some of its adherents expect, and that “framework originalism” lends unexpected support to state expansion because the architectonic political plan to which early lawmakers committed themselves can lend support to subsequent state expansions and developments unforeseen by those particular lawmakers.
Taken together, this diverse group of authors can be seen as questioning an alternative interpretation of the same era, which holds that the early American republic lacked an authentic “state” as that term is properly understood. “American state formation,” argues Stephen Skowronek (Reference Skowronek2018, 101), for example, “has followed the serial upending of legal and social relations protected by the Constitution’s original arrangements, and those arrangements have, in turn, been progressively distended and stressed by their accommodation of legal and social questions originally excluded.” On similar grounds, scholars have developed the interpretive argument that historical texts and debates should be construed in light of the fact that certain questions that have come to occupy subsequent jurists and politicians would not have occupied earlier ones (e.g., Skowronek Reference Skowronek1982; Lowi Reference Lowi2009; Hamburger Reference Hamburger2014).
I contribute to these interrelated debates through an open-ended exegesis of House deliberations over the ASDS, which has yet to be undertaken by any of the aforementioned scholars.Footnote 1 An attentive reading of these debates reveals that some members of the Fifth Congress were actively grappling with the constitutional basis of “small government” doctrines, norms, and institutional arrangements such as sectionalism and laissez-faire, which stood in the way of both the ASDS and the expansion of federal power generally.Footnote 2 In response to assumptions about sectionalism and limits on federal power, these legislators were asking why the American regime’s commitment to justice and the general welfare should not rather be understood as requiring direct federal intervention in the lives of socially and economically vulnerable groups—in this particular instance, sailors—irrespective of the authority of the states in which those groups resided. Consequently, it is reasonable to infer that some general questions alleged by scholars to have been “originally excluded” from political and constitutional debate in the early republic were not (e.g., What are the federal government’s responsibilities to the marginalized and disadvantaged?).
In this respect, my claim differs from those of scholars like Novak and Balogh, who have shown that the early American state was more activist than we might otherwise assume. My contention is not that the early republic was more active and centralized in practice; these scholars have already shown that it was in many respects. Moreover, to make an argument like this would require answering questions about implementation of, and compliance with, the ASDS once enacted—an inquiry beyond the scope of mine, which focuses instead on the ex ante congressional debates over the ASDS’s merits. Rather, I hold that legislators in the Fifth Congress were self-consciously grappling with arguments for and against federal expansion vis-à-vis individual citizens in ways that reveal them to have been aware of, and wrestling with, a wider range of question about the fundamental nature of the constitutional order than we might have expected. Indeed, according to many (e.g., Ackerman Reference Ackerman1998), such questions had been off the table before collective exercises of popular sovereignty—such as the Civil War and the Fourteenth Amendment and later the New Deal and civil rights movement—effected paradigm shifts in American constitutional understanding. In this view, such constitutional moments established as legitimately debatable what had previously been excluded; namely, that direct federal intervention into the affairs of individual citizens unmediated by the states could be thought of as required by the Constitution itself. In my telling, by contrast, members of the Fifth Congress were already exploring Fourteenth Amendment–like understandings of American constitutionalism in 1798, when they debated whether the federal government was responsible for the welfare of all sailors in US waters—citizens and noncitizens alike—and whether the constitution’s commitments to justice and the common good required the federal government to displace the states in matters like this one.Footnote 3
My analysis also differs from the above-cited scholarship in that, building on the work of scholars interested in “constitutionalism outside the courts” (e.g., Morgan Reference Morgan1966; Fisher Reference Fisher1978; Whittington Reference Whittington1999; Currie Reference Currie2001), it speaks to broader scholarly questions about the historical role of Congress in constitutional interpretation.Footnote 4 In contrast with the members of recent Congresses, who have characteristically deferred to the Supreme Court on questions of constitutionality (e.g., Tulis Reference Tulis1997), members of the Fifth Congress signaled openness to a form of departmentalism according to which each element of the American political system has a role in formulating constitutional meaning, especially the Constitution’s commitments to justice and the common good. I deepen the literature on departmentalism (e.g., Johnsen Reference Johnsen2004; Post and Siegel Reference Post2004) by suggesting that members of the Fifth Congress were engaging in theoretically capacious arguments about the Constitution and the American regime in the way we would expect members of Congress to, based on Congress’s unique design as an institution (Tulis Reference Tulis2003). And yet, in my telling, scholars largely fail to recognize arguments of this kind as meaningfully constitutional (as opposed to merely political or partisan), in part because of the narrow way they code constitutional arguments. For example, legal historians have coded congressional speeches as “constitutional” simply if the words “Constitution” or “constitutional law” occur in them (e.g., Whittington Reference Whittington2005). Similarly, Philip Hamburger (Reference Hamburger2012) has argued that the ASDS was constitutional for its authors only in the sense that they viewed it as authorized by Congress’s navy power (Art. I, § 8). In contrast, drawing on recent research in constitutional theory (Jacobsohn Reference Jacobsohn2010; Fishkin and Forbath Reference Fishkin2014; Thomas Reference Thomas2014; Tulis and Mellow Reference Tulis2018), I contend that congressional deliberations like the ones we examine here are rightly coded as constitutional if they debate ways in which the regime’s character and principles require a new, potentially disruptive public policy—even if these deliberations are not based on specific legal and constitutional provisions. As my analysis suggests, far from quibbling over the meaning of the “navy clause,” members of the Fifth Congress were wrestling with questions about the very nature and moral principles of the regime the Constitution created. Indeed, there is reason to believe that some of the legislators who debated the ASDS were actively interrogating the normative basis of the political and institutional arrangements they happened to face in their day. As a consequence, some came to argue that the Constitution’s commitments required reform in the direction of a centralized state that could minister to the needs of marginalized and disadvantaged citizens—even in an era long before the advent of welfare, Medicare, Medicaid, and the Affordable Care Act.
Broadly, then, my aim is to make readers alive to deeper dimensions of thought in these congressional debates—dimensions that more methodologically narrow approaches would obscure—thereby showcasing the power that descriptive research has in the hands of a sensitive interpreter.Footnote 5 In suggesting that ideas in favor of nationalization and the welfare state may have preceded American state building in the 19th and 20th centuries, I mean to argue that though contemporary social, political, and economic conditions do maintain a powerful hold on the minds of most political actors, it is ill-advised from an interpretive perspective to insist that these conditions constrain the thought horizons of all political actors equally. This is to say, it is perfectly natural for a politician to accept as given and legitimate the basic terrain of the political world they happen to inhabit. And yet, it is also possible for individuals to reflect more deeply on the reasons for and purposes of their own political order, asking themselves and others why someone might choose those particular institutions and, further, why a different arrangement might better vindicate the aspirations of the regime as a whole. To this end, without making any hard claims about the objective relationship between ideas and their political and institutional context (see, e.g., Lieberman Reference Lieberman2002; Morone Reference Morone2003; Smith Reference Smith2014), I aim to demonstrate that there are benefits to an interpretive approach liberated from particular metatheories about that relationship. Specifically, an open-ended approach can give us reasons to believe that some political actors are able to contemplate the likely consequences of political and constitutional decisions in ways that others are not, because they have consciously grappled with the objectives that these institutions were meant to realize and, therewith, the consequences of replacing them with new institutions.
To be sure, it is reasonable to doubt whether the insights that we suspect we have discovered in a historical speech or text are in fact those of the original author, as opposed to our own, which we have anachronistically attributed to them. Indeed, this is a pathology shared by legal and constitutional scholars, one which Orren and Skowronek (Reference Orren1994, Reference Orren2004) successfully diagnose. For these authors, scholars persistently misinterpret legal and political texts from earlier eras when they construe those texts teleologically; that is, in light of the emergence of subsequent legal and political questions that appear to have been asked by political actors who in fact never actually lived to ask them: “We can make the Founders’ views persuasive by describing their predictions or their judgments of political cause and effect selectively or in general terms so that they apply to us today” (Balkin Reference Balkin2013). Thus, for example, it was a mistake for Progressive institutionalists to infer that liberal and egalitarian advances in the late 19th and early 20th centuries were an essential part of the American political tradition from its outset, prefigured in the thought of the founding. In reality, hold Orren and Skowronek, those “advances” were actually radical departures from the original tradition, departures occasioned by the emergence of legal and political questions that had been excluded from political debate in earlier eras. How do I mitigate the reasonable interpretive concern articulated by these authors, then?
First, it is by no means erroneous to suggest that many, perhaps most, political actors in a given historical-legal context are more reluctant to consider possibilities outside of the horizon or conceptual framework of the regime they inhabit, and therefore that most politicians and jurists of the early republic “never envisioned a role for central government” (Zelizer Reference Zelizer2003). My contention is simply this. As a hermeneutical principle, it makes sense to assume that political thinking among political actors admits of degrees of sophistication, and that the easily identifiable consensus view of a given epoch therefore is not necessarily emblematic of easily overlooked deeper views (Storing Reference Storing1982, Reference Storing1995; Tulis Reference Tulis2017; Tulis and Mellow Reference Tulis2018). So, while it is certainly possible for contemporary scholars to anachronistically attribute their own ideas to previous thinkers and actors, this fact alone is not dispositive of the possibility that ideas that were heterodox during their own time can be accurately recognized as such by thinkers from a later historical context. Fear of anachronism should not lead us to assume that all previous thinkers were equally committed to prevailing assumptions about legitimacy. Instead, I recommend and try to illustrate an open-ended style of historical legal inquiry.Footnote 6
Relatedly, one might question the tenability of looking to the Fifth Congress as illustrative of high-level constitutional reasoning. After all, the same Congress was responsible for passing the Alien and Sedition Acts (1798), one of the worst pieces of federal legislation in US history. Why should their actions stand as exemplary? Though sensible, this objection misunderstands my methodology. Rather than invoking the Fifth Congress as a source of authority to whose judgment we should defer, I endeavor to gauge the complexity of their arguments about the political and constitutional questions they were debating with a view to discerning the extent to which questions that scholars have assumed to have been off the table during the early republic actually were—specifically questions about the constitutional status of federal welfare legislation.
Finally, one might object to my case selection on the ground that it supports my own thesis, thereby committing confirmation bias. Yet it is not my claim that the arguments articulated in the ASDS debate are representative of a consensus of the era; I certainly would need to survey a broader sample through large-N analysis if it were. Rather, I am attempting to demonstrate the analytical payoff of my particular interpretive approach with reference to a historical case that has rightly been seized on by scholars looking to investigate early republican ideas about state building and nationalization.Footnote 7 Some legal and constitutional historians have viewed this case as vital for their own argument because in their view it showcases how, properly interpreted, historical legislation that appears to support a modern policy development—in this case, a federal welfare state—turns out to support something entirely different; namely, Congress’s navy power. In contrast, other scholars have seen the case as furnishing important evidence for their critique of the idea that questions about a welfare state had been excluded (purposefully or not) from political debate in the early republic. Scholars have selected this case because it promises to help answer questions that have gained salience in the literature, and this is my selection principle as well.
The Congressional Debate over the ASDS
Members of the federal government appear to have begun contemplating a federally administered healthcare system for sailors shortly after ratification. On April 17, 1792, then Treasury Secretary Alexander Hamilton sent the House a letter (Syrett Reference Syrett1966, 294–97) elaborating the reasons for such a healthcare system and urging them to deliberate on it. At the very forefront of Hamilton’s rationale is an argument, not about Congress’s navy power but about the welfare of sailors, who (in Hamilton’s understanding) the nation is bound by justice to assist on account of their socially and economically vulnerable status:
The establishment of one or more marine Hospitals in the United States is a measure desirable on various accounts. The interests of humanity are concerned in it, from its tendency to protect from want and misery, a very useful, and, for the most part, a very needy class of the Community. The interests of navigation and trade are also concerned in it, from the protection and relief, which it is calculated to afford to the same class; conducing to attract and attach seamen to the country. (Syrett Reference Syrett1966, 294)
A less remote source of impetus for the ASDS was President Adams’s first annual address to Congress, delivered on November 23, 1797. The immediate context of the address was, in Adams’s own words (with which he begins the address), “the contagious sickness which afflicted the city of Philadelphia.” Later in the address, Adams would draw attention to growing hostilities between the nations of Europe, as well as hostilities increasingly directed by France and Spain toward the United States. As Hamburger (Reference Hamburger2012) correctly notes, one consequence of these hostilities was an increase in the capturing and injuring of American seamen (military and civilian) by hostile foreign vessels. On this score, Adams cites an existing arrangement whereby American consuls in foreign nations would provide assistance to such seamen and subsequently receive reimbursements from the federal government. Adams, however, declares the arrangement “inadequate and ineffectual” and insists that the current arrangement “relative to seamen, requires revision and amendment” (American State Papers 1883, 44). Roughly one month later, on December 26, 1797, the Federalist-dominated House appointed a committee “to prepare and bring in a bill or bills, in addition to the act, entitled ‘An act for the relief and protection of American seamen’” (House Journal 1797, 114). Considered in isolation, then, these events lend plausibility to the argument that the ASDS was conceived at the time primarily as a response to naval hostilities between the United States and France, that it is best understood as an exercise of Congress’s naval powers, and that a comparison between the ASDS and later welfare legislation (such as the Affordable Care Act) with respect to the question of constitutionality is therefore inappropriate.
Yet, the broader context in which the ASDS was debated and enacted complicates this narrative. Most significant on this score is the way President Adams framed his multiple proposals to Congress in November 23, of which the seamen measure was only one. Like Hamilton in his 1792 letter, Adams here raises the issue of seamen and their welfare in context of a broader argument about how the welfare of those involved in shipping and sailing is connected with interstate commerce, on which the general welfare of the nation depends.
The commerce of the United States, is essential, if not to their existence, at least to their comfort, their growth, prosperity, and happiness. The genius, character, and habits of the People, are highly commercial. Their cities have been formed, and exist upon commerce. Our agriculture, fisheries, arts, and manufactures, are connected with, and depend upon it. In short, commerce has made this country what it is; and it cannot be destroyed or neglected, without involving the People in poverty and distress. Great numbers are directly and solely supported by navigation. The faith of society is pledged for the preservation of the rights of commercial and seafaring, no less than of the other citizens. Under this view of our affairs, I should hold myself guilty of a neglect of duty, if I forbore to recommend, that we should make every exertion to protect our commerce, and to place our country in a suitable posture of defence [sic], as the only sure means of preserving both. (House Journal 1797, 85)
Though some scholars claim that the seamen legislation was understood by its originators to be based solely on Congress’s naval power, in Adams’s vision of public policy, the seamen legislation was cabined within a broader policy reform effort to improve the nation’s general welfare by protecting and stimulating national commerce. Accordingly, the question whether the navy clause led and the commerce clause followed (as it were) faded into the background as a peripheral consideration.
The House began debating what become known in subsequent weeks as “the bill for the relief of sick and disabled seamen” on April 10, 1798 (Annals of Congress 1798, 1386). The bill’s sponsor was one Rep. Edward Livingston of New York’s Second District, a Republican who vehemently opposed Adams’s and the Federalists’ Alien and Sedition Acts, and who would go on to become a US attorney in the district of New York under the Jefferson administration (Hatcher Reference Hatcher1940).Footnote 8 On the previous day, April 9, Livingston had moved that the House should form a committee of the whole to consider amendments on the bill. As we will see below, the ASDS appears not to have divided politicians at the time along party lines, as witnessed by shared Republican and Federalist support (e.g., Adams [F], Livingston [R], and Parker [F]) and shared Republican and Federalist opposition (e.g., Sewall [F], Varnum [F], and Gallatin [R]). Though neither the amendments nor the debates over them are in the record, the amendments had been passed by the committee of the whole and the bill had been ordered to be read a third time “to-morrow” (Annals of Congress 1798, 1384). The first to speak after the third reading was Samuel Sewell, a Federalist from Massachusetts. Though he was “unwilling to say anything against [the] bill,” Sewell believed “the passing of it would be attended with many inconveniences and objections, which ought to be mentioned” (1386). Sewell felt that he saw beyond the bill’s obvious surface—establishing a fund for seamen—to the likely broader implications it would have for the whole country. (1) Because “provision is already made for sick and disabled persons” in “the part of the Union from whence he came” (the State of Massachusetts), the ASDS would be compelling seamen from that region and others like it to pay for public services they are already paying for and receiving. In effect, they would be charged twice—at the state and federal levels—for services that seamen from states without such services would pay for only once. Consequently, Sewell felt that “it was difficult … to conceive upon what reasonable ground the seamen of [states such as Massachusetts] could be called upon to contribute to a fund of this kind.” (2) Sewell also “doubted the propriety of taxing seamen only for the support of what ought to be considered as a public charity.” If the federal government truly wished to provide relief for “unfortunate men of this description,” it should encourage nonprofit charity work that would not come at the expense of those to be helped. (3) Because the ASDS presupposes the means it intends to provide—namely, hospitals funded by the tax—seamen are unlikely to see any benefits from the Act “for fifty years to come, as large and splendid buildings must first be erected, in order to exhibit to the world a species of public charity.” In other words, the ASDS poses a solution to an immediate problem, yet its internal logic—the costly benefits it promises must be funded through the cost it imposes—will precipitate a long-term governmental project that will be self-sustaining. (4) Citing historical precedent is inapt: “Reliance … had been laid on the example of England, where it was said similar establishments existed. But those establishments were begun by the grants of individuals, and a particular class of seamen—those employed in the navy merely contributed to their current expenses; so that the two cases were very different” (1387). (5) As the aforementioned costs of making relief for seamen a national rather than a state responsibility outweighed any conceivable benefits, a strict adherence to narrow federalist principles should be maintained: “Sailors must go [into other states] as they go into foreign countries” (1386).
Sewell’s first objection fits into a comprehensive normative argument about the role the national government should play in the future polity. This argument can be glimpsed most clearly from Sewell’s recognition of the truly unprecedented character of the ASDS as an expansion of national power and state-building capacities. As he observes, the comparison with England’s law is improper because the ASDS does not stipulate that those who receive benefits must register for naval service, nor does it derive its funding solely from those registered with the navy. Rather, it takes money from all seamen who are entering US ports and who are involved in the US coasting trade—American and non-American, military and civilian alike. Accordingly, whereas the English law is best understood as an institution within the British Navy—naval qualifications must be presented in order for medical care to be administered, and only those registered with the Navy are charged—Sewell recognized that the ASDS was completely detached from the US Navy, that it was a civilian service aimed at improving the lot of a group of people upon whose welfare the life of the whole nation in large part depends. Accordingly, while the ASDS will no doubt help seamen who have been injured in naval conflicts, any seaman can receive medical care at the hospitals it establishes. Rather than a naval service that will incidentally help nonnaval seamen, the ASDS is better construed as a civilian service that will incidentally help nonnaval seamen involved in naval conflicts. The Act, in short, was designed to take on a life of its own beyond whatever incidental military function it might have.
The ASDS also goes beyond “public charities” by turning healthcare into a nationwide government service funded by those who would receive its benefits. Because they know they have paid into the fund, seamen will be incentivized to use the services that are on offer by the federal program. Moreover, seamen will be further incentivized to travel nationwide—from New England to “the Southern States”—by the knowledge that healthcare will be available wherever they go, and not only in states like Massachusetts. Consequently, the states will no longer be like “foreign countries” to each other. In turn, these effects will be symbiotic, since the more seamen that participate in commerce, the more funds that will be available to the ASDS service, which will in turn induce more seamen to travel, knowing that medical care will be available to them in ports nationwide. As a result, the ASDS will induce and facilitate interstate commerce because seamen will no longer be dependent on the whims of state governments and public charities. By diverting money away from the states and charities that would otherwise be tasked with solving such problems, and toward a centralized federal program, the ASDS would weaken the ability of states and charities to respond, thereby incentivizing the federal apparatus to pick up their slack. Indeed, the problem Sewell sees is less that sailors from states like Massachusetts would be overburdened by federal and state taxes, and more that the federal government would incentivize them to make use of its new nationwide health system wherever they go. In so doing, the Act would render the states and public charities increasingly unnecessary and generate the conditions for its own necessity.
Next to speak was Rep. Thomas Pinckney, John Adams’s running mate in the 1796 election and brother of the Constitution signer Charles Pinckney. It is worth noting at the outset that Pinckney (who, like Sewell, was a Federalist) did not respond to Sewell’s rejection of the English law as a relevant precedent; and his silence on this score was maintained for the rest of the debate of April 10. The effect of this silence would seem to have been twofold: (1) to concede to the bill’s opponents that the ASDS was indeed something new and unprecedented—at least in comparison with the English law—and (2) to shift the debate to higher plane of reasoning. Thus, going forward, the pressing question was not merely whether the ASDS offered a positive benefit to the Union, but what sort of Union it and similar measures would help bring into being.
Returning to the debate, Pinckney answers Sewell’s first three objections in the order Sewell presented them. Beginning with the acknowledgment that “the law [the ASDS] did bear a little hard upon [Massachusetts],” “there being already provision made in the Eastern States for the relief of sick and disabled seamen,” Pinckney maintains that “as [the ASDS] would operate a general benefit to the Union, it would not be objected to” (Annals of Congress 1798, 1387). By the same token, his solution for states where similar laws were already in effect was simple: “If there is a provision at present made in Massachusetts for [seamen], it must be a burden on the people there; and if, after the passing of [the ASDS], that burden be removed, it would certainly be beneficial to the citizens of that State in general, though [the ASDS] may be a tax upon the seamen.” Because the ASDS would remove the necessity for similar laws on the local level, it would be in Massachusetts’s interest to repeal its current law, which imposes a tax on the whole population of the state, and to allow the national government to take over the responsibility in question. In other words, double-charging is only a problem if states like Massachusetts insist on maintaining their current services after the national government has begun to supply services that affect the same object.
Next, Pinckney answers Sewell’s second objection by conceding that “taxing a particular description of men [namely, seamen] for a general object” would indeed be inequitable. But the ASDS would not do that. Rather, it would establish a service whereby seamen would “pay for the benefit which they were themselves to receive.” In justifying the ASDS in this particular way, Pinckney momentarily ceases to characterize it as a “tax” and instead as a “benefit,” a kind of state-orchestrated exchange or insurance market wherein participants would be made to pay a specific rate for a specific service—in this case, healthcare—whose benefits they, as a paying group, would be eligible to receive in the future.
To Sewell’s third objection, that the ASDS would precipitate “large and splendid hospitals,” Pinckney obfuscates in a way that acknowledges the bill’s inner logic, which Sewell so aptly discerned: “As far as [Pinckney] had had considered the bill, he understood that the erection of hospitals was only a secondary object. Relief to distress is the first thing to be attended to” (Annals of Congress 1798, 1387). Though he does not explicitly invoke it here, Pinckney is employing an expansive construal of the necessary and proper clause, reminiscent of the construal John Marshall would give that clause 21 years later in McCulloch v. Maryland (17 U.S. [4 Wheat.] 316 [1819]). The primary object of the ASDS is the relief of seamen, but insofar as Congress judges a nationwide network of hospitals to be necessary means for realizing that goal, Congress is empowered by the Constitution to duly provide for such hospitals.
Choosing, as noted, not to respond to Sewell’s fourth objection concerning precedent for the ASDS, Pinckney moves to consider Sewell’s fifth objection concerning whether the welfare of seamen was truly a national concern and therefore a national responsibility. To be sure, Pinckney here appeals to Sewell’s sectional proclivities: “Seamen who are sick and disabled [in the Southern States] have only to rely on public charity for support; and surely the Eastern States, who furnish at least three-fifths of the seamen of the United States, are interested in providing some more certain support for their unfortunate citizens.” Notice, however, that Pinckney makes his appeal in a way that shifts the argument from a states-oriented premise to a Union-oriented one. Sewell had asserted that seamen from states like Massachusetts would not benefit from the ASDS because their states already provide such services. Yet this assertion takes for granted the decisive premise; namely, that seamen from such states would be sailing primarily in their own waters, where they would be able to use medical services already in existence. By the same token, it ignores the possibility that seamen from such states will be induced by interstate commerce to sail across the country, which includes states that do not currently provide medical services. Sewell thus presupposes a federal arrangement akin to that which was established under the Articles of Confederation, in which state economies remained largely disconnected (e.g., in which seamen from Massachusetts would for the most part conduct their business in Massachusetts). Pinckney, in stark contrast, paints a picture of the future in which seamen from Massachusetts would be induced to sail to the southern states just as often as, if not more frequently than, to locations within Massachusetts. Accordingly, he implicitly concedes that, in a fundamentally sectional scheme where states rely on their own commercial markets, it would indeed make little sense for Massachusetts to support the ASDS. In the interconnected national scheme he envisions, however, it would be logical to assume that states that supply the most seamen would both (1) see those seamen regularly traveling across the country for purposes of interstate commerce and (2) have an interest in providing for their welfare through a national healthcare program for their relief.
Next to speak was Edward Livingston, the bill’s sponsor, who proposed an alternative solution to Sewell’s first objection. Because the ASDS gave the executive branch “the power to appropriate money for the temporary relief of seamen,” argues Livingston, the president could use his discretion to refund those states that already charge for health services: “He would reimburse to the State of Massachusetts, or any other State, any sums of money expended for this purpose” (Annals of Congress 1798, 1388). Livingston is here sketching out the second of two alternative national solutions to the problem posed by Sewell. Livingston proposes that if states with healthcare systems already in place should choose to retain those systems even after the national system was put in place, the federal government would permit those states to run their own systems while, in effect, taking over the task of funding them. The scheme bears some resemblance to later federal-state arrangements, such as Title XIX of the Social Security Act (Medicaid), wherein the former provides funds while the latter supplies infrastructure. The difference, of course, is that in later instances of “cooperative federalism,” the national government either matches state funding or supplements it. In Livingston’s plan, by contrast, the federal government would simply take responsibility for funding the health service away from the states, making it a completely national concern. Livingston’s founding era scheme is therefore more robustly national than schemes of cooperative federalism insisted upon by “federalism” advocates such as Justice O’Connor much later in American constitutional history (e.g., New York v. United States, 505 U.S. 144 [1992], majority opinion).
Having opened with this seeming compromise between the state and national governments, Livingston proceeds to advance an emphatically nationalist argument: “If the inequality [between states that have healthcare systems and those that do not] had existed,” nevertheless, “when he [Sewell] had seen the extreme utility of such a provision in other parts of the Union,” Livingston “should have hoped he [Sewell] would have waived his objection” (Annals of Congress 1798, 1388). Providing seamen across the entire country with adequate healthcare is so manifestly a national concern that even if individual states were charged more than others as a result of the ASDS, the people of those states should be willing to incur the costs on account of the “extreme utility” of the services that those costs would provide for the Union and for them. This argument is actually an extension—indeed, a radicalization—of the argument that was more subtly invoked by Pinckney; namely, that Congress can no longer afford to think in sectional terms, as Sewell wishes to do, because the fortunes of the states are increasingly bound together. Tasks that may have once been up to the states are now matters of national concern because the Union depends on a competent and uniform execution of them. The welfare of seamen is of this character, and for two reasons. As Pinckney observed, the nature of their work requires (and increasingly will require) seamen to travel “among the several states.” More importantly, as Livingston goes on to explain, seamen tend to be of such a character, and their work tends to impose upon them such tasks, that, as a class, they are “a proper object for the care of Government.” In a clear articulation of “welfare constitutionalism” (Barber Reference Barber2003), which belies the doctrine that politicians of the founding era regarded the Constitution as nothing more than a check on governmental powers, Livingston maintains that the responsibility for assisting a systemically disadvantaged portion of the population such as seamen falls not to private charities and local governments but rather to the national government. Indeed,
if he knew anything of the careless, honest nature of this class of men, they would not object to so trifling a sum as twenty cents a month for so valuable an object [as healthcare]. A sailor, said he, is concerned only for the present, and is incapable of thinking of, or inattentive to, future welfare; he is, therefore, a proper object for the care of Government, and whilst he can provide an asylum for infirmity or old age, by the sacrifices of a few gills of rum, he will not scruple to do it.
(Annals of Congress 1798, 1389)By taking over this responsibility, the ASDS would “conduce to the happiness and comfort of this class of men, and to the honor of the nation.”
In a somewhat testy response to Livingston, Sewell advances two points in particular that are worth considering. Maintaining his first objection, regarding the fact that sailors would be double charged if state healthcare systems were kept in place after passage of the ASDS, he repeats that “as the sailors of Massachusetts could not be excused from paying the town taxes [proceeds from which fund local healthcare for seamen], it was hard they should be called upon again [by the ASDS] to pay for the support of their own body” (Annals of Congress 1798, 1389). More remarkable than Sewell’s actual argument here (which is merely a repetition of his first objection) is the fact that he seems not to have registered Pinckney’s fairly straightforward reply to that objection: as states and local governments will no longer have to fund their own healthcare systems after the ASDS passes, they can simply lower their state and “town taxes” proportionally, thereby relieving the double burden on sailors (who will only be paying once; namely, their fee to the national healthcare system under the ASDS) and transferring the responsibility for providing healthcare for seamen from the states to the federal government. By insisting that sailors will continue to be double taxed, Sewell reveals that he is still, in part, locked into a view of the polity akin that contemporary originalist scholars frequently attribute to the founders in general, wherein the states continue to share large measures of responsibility with the national government. As a result, even as Sewell acknowledges that the ASDS will interfere with what has hitherto been a matter of local authority, he continues to see the future through the prism of his current political situation. In this respect, as we have seen, he differs crucially from Pinckney and Livingston, both of whom are much more alive to the centralizing and nationalizing consequences that the ASDS will have for the polity.
Sewell’s second point concerns the status of the ASDS as a tax. As pointed out above, both Pickney and Livingston raise implicit questions (without answering them, of course) as to whether the ASDS is best understood as a tax at all and not rather a service or “benefit.” Indeed, as Sewell puts it in rephrasing Pinckney’s statement, “That gentleman said the sailors ought to pay the tax, because they were to receive the benefit arising from it. But he [Sewell] had before stated that the seamen of New England do not want this provision and why tax them for what they do not want?” (Annals of Congress 1798, 1390). Sewell again reveals that he is still conceiving of national commerce within the framework of sectionalism, wherein sailors from New England will primarily conduct sailing voyages in New England and wherein providing medical care for seamen is primarily a state responsibility. In contrast, Pickney and Livingston have moved beyond the sectional framework to a national one, in which sailors who are more often than not engaged in interstate commerce have an interest in a direct relationship with the national government through a national healthcare service available to seamen at all major ports within the United States.
The debate concluded with some remarks by Rep. Josiah Parker, a Federalist from Virginia; Rep. Samuel Varnum, a Federalist from Massachusetts; and Rep. Albert Gallatin, a Republican from Pennsylvania. Parker began his brief though astute remarks with the statement that he “was sorry the gentleman from Massachusetts [Mr. Sewell] could not consider all the seamen of the United States as standing upon the same ground” (Annals of Congress 1798, 1391). This antisectional remark faults Sewell for having stressed that seamen from Massachusetts would suffer from a national health program for seamen of the several states. In Parker’s view, American seamen stand on the same ground insofar as their welfare is a concern not just of the states in which they happen to reside and into which they happen to travel, but of the whole Union. The individual states should not be allowed to make the plight of this group, whose members across the country stand on the same ground, more or less difficult.
Rep. Gallatin gave the last substantial speech of the debate, objecting to the bill not on the basis of a constitutional argument but on principled public policy grounds. As “he was always inclined rather to vote against [any measure] than for it” “until he saw some positive good as likely to arise from [it],” he elected to oppose the ASDS until it could be more rigorously demonstrated “that the seamen of the United States are not able to provide for themselves, and therefore, that it is necessary to provide a sum for their relief, in case of sickness or disability” (Annals of Congress 1798, 1392). Key here is the position that Gallatin does not take; namely, that the ASDS is beyond the authority of Congress under its constitutional powers. Indeed, like Rep. Varnum, who raised a truncated version of the same objection before him, he does not even raise that question as a potential difficulty. Instead, Gallatin seemingly takes for granted that Congress has the authority to legislate so as to bring about the goal in question; the question is whether such a use of its authority would make for good public policy. Thus, as Varnum puts it, “He did not know but that the United States have the power to make the proposed regulation; but he thought it was a business which more particularly concerned the Legislatures of the individual States” (1391).
Gallatin’s objection to the ASDS thus hinges on an essentially logistical question; namely, whether the harm to the general welfare resulting from sick and disabled seamen—harm that advocates of the bill have posited—is, in fact, as acute and pressing as those advocates have insisted it to be. Accordingly, he states that he is currently of the view that, as a group of people, seamen “are capable of taking care of themselves.” Nevertheless, as he conveys in his closing statements (which effectively end the April 10 debate), he is open to new information that might shift his current position: “Mr. G. said, he should be glad to have known something as to the effect this law would produce in this city [Philadelphia].” “He therefore moved to postpone the question on the passage of this bill for two days, in order that he and his colleagues might make some inquiries on the subject” (Annals of Congress 1798, 1393). The results of these inquiries appear to have overcome Gallatin’s initial hesitations. In a letter to Thomas Jefferson from February 16, 1802, Gallatin—by then the secretary of the treasury—described to the president measures needed to keep the ASDS running smoothly (Oberg Reference Oberg2009, 589–92). Eight days later, Jefferson, who obviously supported the ASDS, forwarded Gallatin’s message to the House, together with his own recommendations for expanding ASDS infrastructure at the port of New Orleans (631–32). His rationale was that the health of sailors traveling through that port was of national concern: “When we consider how great a proportion of the territory of the US. must communicate with that port singly; & how rapidly that territory is increasing it’s population & productions, it may perhaps be thought reasonable to make hospital provisions there of a different order from those at foreign ports generally.”
Per Rep. Gallatin’s recommendation, which was seconded by one Rep. Hartley and approved of by Rep. Livingston (who “had no objection to the postponement … because he knew the effect of the inquiry would be favorable to the bill” [Annals of Congress 1798, 1393]), voting on the bill was postponed until April 12, when it was passed by the House. After several debates over amendments, a similar bill was passed in the Senate on July 14 and returned to the House for concurrence on the amendments (Senate Journal 1798, 542). The texts of none of the aforementioned debates have come down to us in the relevant congressional journals. The bill was signed into law by President John Adams on July 16, 1798. After its passage, the ASDS was instrumental to the emergence of a national-level healthcare apparatus, whereby matters of public health judged by Congress to be of national rather than merely local concern were gradually taken away from the states and local communities and given to the federal government (e.g., Mullan Reference Mullan1989). As we have seen, this subsequent development in many ways confirms arguments articulated by the Fifth Congress, arguments that—contra originalist critics—approved the constitutionality of the ASDS and foresaw that it would take on a life of its own beyond merely providing relief for potential naval combatants.
An Alternative Rendering of the ASDS
With this debate in view, let us begin by contrasting the rationales supplied by the bill’s defenders—rationales open to nationalization and state building—with a historical interpretation of the ASDS advanced by Philip Hamburger. Hamburger (Reference Hamburger2012) contends that “the source of constitutional authority [for the ASDS understood by its legislators] was … one of Congress’s military powers—in this instance, its power to ‘provide and maintain a Navy.’” Hamburger proceeds to substantiate his contention that
although the naval character of the health provisions is not obvious from the statutory texts, [its naval character] is apparent from the underlying history. Indeed, the naval objectives would have been obvious to contemporaries, for healthcare and the collection of hospital funds were standard means of ensuring a large supply of healthy seamen.
(Hamburger Reference Hamburger2012; emphasis added)Notice Hamburger’s speculative attribution of legislative intent: “Naval objectives would have been obvious to contemporaries.” To this end, before discussing the historical context in which the ASDS was debated and passed, Hamburger cites and briefly discusses the British practice, dubbed “the Chatham Chest,” of providing health services for nonmilitary seamen who—as wars involving British seamen during 1588 and 1696 demonstrated—could potentially become involved in naval conflicts. Though he does not provide historical evidence in support of his contention that this precedent was viewed by the Fifth Congress as authoritative or relevant, Hamburger nevertheless implies both that the British usage was a “military power”—specifically, a naval power—under the British Constitution, and that the authors of the ASDS would have conceived of their own legislation as being authorized by the same power under the US Constitution. The more important of Hamburger’s arguments, however, is based on the historical fact that “the federal provision for hospital money came during hostilities with France.” According to Hamburger, this fact confirms or at least strongly suggests that the legislators of the 1798 Act would have understood that legislation to be limited in its application to seamen involved in military conflicts.
Several features of Hamburger’s argument are worth unpacking. First, in positing a specific and unified intention to the Act’s framers, Hamburger presupposes that the ASDS would, in the minds of the Fifth Congress, have been circumscribed in its applicability to seamen involved in military conflicts. However, he also concedes that because all seamen (military and civilian alike) were potential participants in military conflicts—no American ship could foresee whether it might be attacked by a French vessel—Congress had an incentive to take measures that would insure the health of all seamen. Key here is the narrow construction of their own bill, which Hamburger attributes to the framers of the ASDS. In Hamburger’s telling, Congress did intend to provide healthcare to seamen, but only insofar as those seamen were potential naval combatants. Indeed, this premise is the crux of Hamburger’s argument that the ASDS was authorized under Congress’s naval powers, and not with reference to a broader conception of Congress’s constitutional authority to realize justice and the general welfare. The rationales on display in the April 10 debate, however, contradict Hamburger’s speculative attribution of a narrow legal understanding of constitutionalism. Further, they prompt us to reflect on the constitutional ideas that actually surfaced in the course of that debate.
Departmentalism in the Fifth Congress
On the basis of my interpretation of the April 10 debates, and in light of Hamburger’s narrow criteria for what it means to engage in constitutional interpretation, one might conclude that the members of the Fifth Congress were simply unconcerned with constitutional limits and principles—a conclusion that is not entirely implausible given, as noted above, that the same legislators passed the Alien and Sedition Acts. Though there is some basis to this concern—after all, the Fifth Congress did not engage in the kind of argumentation that scholars have tended to code as “constitutional” (e.g., Whittington Reference Whittington2005)—they were nonetheless engaged in constitutional reasoning of a more theoretical kind, as I have tried to describe. The April 10 debates suggest that the Fifth Congress did not follow the kind of clause-bound interpretation that scholars tend to associate with constitutional discourse, favoring instead a mode of constitutional reasoning that we would expect to see in congressional debates (as opposed to, say, judicial opinions) given the particular perspective on public policy that Congress’s design incentivizes its members to adopt. This mode is neither unconcerned with questions of constitutional meaning nor preoccupied with justifying legislation on the basis of specific constitutional clauses. It is principled without being legalistic.
As scholars have argued, different constitutional offices are designed to think about constitutional questions differently. At the same time, in accord with departmentalism, members of all three branches take constitutional oaths, which means they are equally obligated to justify their official conduct with reference to the Constitution as they understand it. What does this mean in practice? The differing designs of constitutional offices are supposed to induce their members to see political and constitutional questions from different vantage points (Zeisberg Reference Zeisberg2013; Bell Reference Bell2018, Reference Bell2019; Tulis and Mellow Reference Tulis2018; Zug and Ewing Reference Zug2018). Specifically, courts are best situated to consider the facts of particular cases involving the constitutional rights of individual parties in light of general norms, statutes, and principles. As such, courts tend to approach the Constitution as though a single best legal answer can always be reached on the merits (e.g., Segal and Spaeth Reference Segal2002, 44–85). This is a strength as well as a weakness. As Madison observed, “The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice” (Hamilton, Madison, and Jay Reference Hamilton2001, 104). Though courts must judge as if a precise legal delineation were always possible, political thinkers of the early republic (such as Madison) were well aware of the limits of purely legal reasoning. A court’s fixation on questions of constitutional authorization (Does a given statute pass muster under a given clause?) is therefore an advantage when the law must be applied to particular parties, but it is a weakness when the aim is to set public policy in motion towards a desired future state of affairs—a state that is nonetheless constitutional in a meaningful sense. In contrast with the Court, Congress must seek a future state of affairs through legislation that both appropriates public funds and directs how they are to be spent. For this reason, we might expect to see members of Congress viewing the Constitution prospectively as a source of empowerment for achieving a future that achieves its principles as they understand it.
In contrast, the Supreme Court is responsible for judging the constitutionality of legislation through the lens of cases and controversies that arise between parties and that implicate legislation that has already been passed. Courts are not responsible for creating a future state of affairs but rather for determining whether the ends that Congress and the president have judged necessary and proper for achieving that future are constitutional as they apply in individual cases and controversies. Courts are essentially retrospective in their constitutional activities. Consequently,
the same political or constitutional issue may arise before the President as before the Court and be resolved differently. If left to any one branch the same issue might be resolved differently because each branch brings to the issue a different perspective, a different set of priorities and considerations.
(Tulis Reference Tulis2003, 209; see also Jackson [Reference Jackson1834]; Jacobsohn [Reference Jacobsohn1986]; Lincoln [Reference Lincoln2014, 111–19])Recognizing this fact, the US Constitution’s design attempts to make a virtue out of these distinct and competing perspectives on politics by concentrating the different epistemic strengths of differently equipped governmental branches to bear on the same political problems. The best rationale for this design choice is that interbranch deliberation (i.e., publicly regarding arguments exchanged by different institutions as a result of conflict induced by the separation of powers) would ensure that a fuller range of political and constitutional considerations would emerge at each stage of political decision-making than would otherwise emerge (Tulis Reference Tulis2003; Zug and Ewing Reference Zug2018). In sum, it is not desirable to get only a court’s (or a legislature’s or an executive’s) input on a given policy decision, because their input will likely capture only one aspect of a range of considerations and concerns that would need to be taken into account in order for that decision to have been adequately debated and thought through. The debates over the ASDS reflect this separation of powers system in that its participants approach questions of constitutionality from a prospective vantage point, offering rationales for how the consequences of the ASDS for state building and nationalization vindicate the Constitution’s commitments as they understand them.
Conclusion
In their deliberations over the ASDS, members of the Fifth Congress appear far less concerned with legalistic, text-based justifications for their actions than contemporary scholarship would lead us to assume, adopting instead a broad and non-clause-bound approach to questions of constitutionality that nonetheless remains meaningfully constitutional. Relatedly, their descriptions of and rationales for what they viewed as the likely consequences of the ASDS (both for state administrative capacities and federal-state relations) suggest that they were actively and self-consciously grappling with the normative grounds of what they were proposing as well as what they were proposing to change. Several interesting possibilities emerge from these observations, possibilities that scholars interested in constitutional development might find worth pursuing. What does it mean for Congress, in practice, to have a prospective focus as opposed to a retrospective one? Does it mean that Congress will be more likely to push constitutional boundaries further than other institutions, and that the Court, because it examines controversies that have passed, will retard state building and constitutional development more often than the democratically elected institutions? While such questions are beyond the scope of the present inquiry, my attempt to bridge the gulf between departmentalism and state building provides a novel lens with which to analyze the roles that different institutions play in constitutional development.Footnote 9 More broadly, my interpretive method showcases the benefits of attentive engagement with historical legal texts, engagement that is unencumbered by particular theories about the dependence of ideas on their particular context. In addition, through study of the formation and expansion of the Public Health Service, scholars of American political development could profitably investigate the extent to which “big government” ideas in favor of nationalization and state building bear causal responsibility for the expansion of national administrative capacities in the 19th and 20th centuries (e.g., Dearborn Reference Dearborn2019a, Reference Dearborn2019b), a topic this article raises but by no means answers.
