Daily Beast's Kohn: Founding Fathers Would Be FOR the HHS Contraception Mandate

Does the Daily Beast's Sally Kohn not have an editor? Or does she just have one who simply doesn't care that she utterly embarrasses herself when she insists the Founding Fathers would approve of ObamaCare's contraception mandate?

"To put it mildly, our forbearers [sic] would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us. Make no mistake, this is what Hobby Lobby wants to do—use government to push a conservative religious agenda, " Kohn groused this morning in "When Religion and Liberty Collide":


After all, Congress passed the Affordable Care Act, signed by the President and deemed constitutional by the Supreme Court, which would among other things ensure that all health insurance plans in the United States offer basic levels of coverage, including coverage for contraception. That is a secular goal rooted in basic principles of public health as well as economics (that it is more cost effective to cover birth control than maternity care and pediatric care) not to mention a basic respect for a woman’s right to control her own reproductive choices. And the law provides for individual freedom *of* religion—individuals are, of course, free not to access contraception, and religious institutions are even exempted from contraception coverage requirements.

Hobby Lobby wants to go one step further. This corporation, which already takes advantage of special government benefits by incorporating as a private business in the first place (entitling Hobby Lobby to tax benefits and liability shelters to which individuals alone are not entitled), wants to use its government-created corporate status with the help of government-run courts not just to express its religion on a poster or what have you but to force its employees to comply with the supposed religion of the corporation’s founders. This is, plain and simple, a corporation trying to contort government to impose the religious views of some onto many. This is precisely what our nation was founded against.

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Thomas Jefferson might not have been able to foresee gay marriage—the man didn’t even have enough democratic imagination to see the hypocrisy in his ownership of slaves—but you can be sure that he would be mortified to see any religious community in America try to use the government he and others created to impose religion on others.

Actually, Ms. Kohn, our republic was founded on the concept of limited government. The Constitution delegates enumerated powers to the federal government, and nowhere among them is the micromanagement of how companies pay and provide benefits for their employees.

The MSNBC contributor offers no evidence that any of the Founding Fathers would favor such a massive regulatory enterprise like ObamaCare in the first place, much less the staunchest backer of federal power among them, Alexander Hamilton. As libertarian constitutional scholar Randy Barnett argues in a monograph on "The Original Meaning of the Commerce Clause":

In several of his contributions to The Federalist Papers, ardent nationalist Alexander Hamilton repeatedly made clear the commonplace distinction between commerce or trade and production. In Federalist 11, he also explained the purpose of the Commerce Clause, a purpose entirely consistent with the prevailing "core" meaning of the term "commerce":

An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope from the diversity in the productions of different States61

  In Federalist 12, he referred to the "rivalship," now silenced, "between agriculture and commerce,"62 while in Federalist 17, he distinguished between the power to regulate such national matters as commerce and "the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation."63 In Federalist 21, Hamilton maintained that causes of the wealth of nations were of "an infinite variety," including "situation, soil, climate, the nature of mthe productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry."64 In Federalist 35, he asked, "Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts to which his commerce is so nearly allied?"65

 In none of the sixty-three appearances of the term "commerce" in The Federalist Papers is it ever used to unambiguously refer to any activity beyond trade or exchange. At the time of the framing, then, for Hamilton, a proponent of broad national powers, the term "commerce" in the Constitution referred to trade or exchange, not to the production of items to be traded, and certainly not to all gainful activity. Even later, with the contentiousness of the Constitution's adoption behind him, Hamilton's usage did not change. As Secretary of the Treasury, Hamilton's official opinion to President Washington advocating a broad congressional power to incorporate a national bank repeatedly referred to Congress's power under the Commerce Clause as the power to regulate the "trade between the States."66

If that was Hamilton's perspective, how much more so would Thomas Jefferson have reacted negatively to ObamaCare's top-down direction of a substantial fraction of the U.S. economy? Kohn simply provides no evidence to support her outlandish presumption that the founding generation would have anything kind to say about ObamaCare as a whole, much less the contraception mandate.

What's more, Kohn's arguments about a corporation forcing its religion on its employees is utterly risible as well. Let's revisit her argument:

Hobby Lobby wants to go one step further. This corporation, which already takes advantage of special government benefits by incorporating as a private business in the first place (entitling Hobby Lobby to tax benefits and liability shelters to which individuals alone are not entitled), wants to use its government-created corporate status with the help of government-run courts not just to express its religion on a poster or what have you but to force its employees to comply with the supposed religion of the corporation’s founders. This is, plain and simple, a corporation trying to contort government to impose the religious views of some onto many. This is precisely what our nation was founded against.

First off, incorporating a business is not a "special government benefit," it's a legal option open to virtually any business owner who satisfies the legal requirements of incorporating a business. It makes eminent sense because it protects business owners from financial ruin should their business go under. These financial and legal protections serve to ENCOURAGE business formation and with them job creation that comes about from viable business enterprises.

What's more, Hobby Lobby is not "forc[ing] its employees to comply with the supposed religion of the corporation's founders" nor "impos[ing] the religious views of some onto many." Hobby Lobby is not making employees sign a profession of faith nor attend worship services nor contribute monies to religious enterprises or church. What the company is simply doing is wishing to refrain from subsidizing health insurance which pays for contraception that is abortifacient in nature and thereby violates the religious scruples of the company's owners. In no way, however, does that prevent Hobby Lobby employees from buying those very same contraceptives with their own money.

Kohn closed her article by hearkening against to Jefferson (emphasis mine):

The “separation between church and State” which Jefferson articulated and the Supreme Court affirmed wasn’t just about freedom *of* religion—the state leaving churches and the individuals within them free to express whatever religion they desired. There was the other side of the coin, too —freedom *from* religion, freedom from the state passing laws to aid one religion or any religion or prefer one over another, and by natural extension, freedom from anyone using government to impose their religious views on anyone else. Freedom *from* religion is at the core of our nation’s founding and is the essence of our laws and practices ever since. Right-wing conservatives professing to uphold and impose traditional values in America are perversely undermining the values on which America was founded.

Kohn fails to see the religious devotion which she invests in the state mandating what health insurance employers, including religious ones, MUST provide their employees. Indeed, to assert that religious scruples shall have no bearing on what government mandate a businessman shall do is to mandate a fundamentally religious view on everyone. To assert that employer-subsidized birth control is a "right" is in and of itself a religious view. It's a view that religious scruples against such a mandate are wholly invalid. It's a judgment by the state that the religious beliefs of a business owner can and must be sacrificed on the altar of big government as a price for daring to be a businessman.

It is Kohn and her cronies whom Founders like Thomas Jefferson would thoroughly detest, not business owners fighting to protect their rights in the federal courts.

Ken Shepherd
Ken Shepherd
Ken Shepherd is the Managing Editor for NewsBusters