March 18, 2011 – Article I, Section 08, Clause 01 of the United States Constitution – Guest Essayist: John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University

Article 1, Section 8, Clause 1
1:  The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article 1, Section 8 enumerates the powers of Congress.  Listing those powers indicates that the federal government is one of limited powers.  Unlike a unitary sovereign which has all the general powers of government, the federal government has only limited sovereignty.  At the same time, the federal government possesses the fullness of any power actually given to it. As Federalist #23 makes plain, on those matters for which the Constitution has delegated responsibility to the federal government, i.e., national defense, foreign relations, regulation of national and foreign commerce, and preserving the public peace against insurrection, the federal government’s “powers ought to exist without limitation.”  All of which is to say that the powers of the federal government are limited in number, not that a listed power itself is limited beyond what is stated in the text of the Constitution.

As a result, it becomes essential to determine the meaning of the text for each enumerated power. Improper interpretation through either expansion or contraction does damage to the legitimate role of the federal government.  Giving the federal government a power not enumerated moves it closer to possessing full sovereignty. Limiting a given power enfeebles, at least partially, the ability of the federal government to carry out its legitimate responsibilities. Experience has also taught that the federal government can be enfeebled in the exercise of its legitimate powers because it expends resources illegitimately exercising powers not enumerated in the Constitution.  The built-in efficiency of the Constitution’s federal design is that it gave to the federal government, and left to the states, those responsibilities which each level of government was best able to perform.

The federal government has in large measure been able to exercise non-enumerated power through misconstruction of the first clause in Article 1, Section 8.  This clause illustrates the interpretive challenge.  To understand the challenge, it is necessary closely to inspect the text of this clause which reads as follows: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

Notice that after the word “Power” the word “To” is capitalized. Then notice that “to” before “pay” is not capitalized. Every enumerated power thereafter begins with “To,” without repeating “The Congress shall have the Power.” In other words, each clause beginning with a capitalized “To” states a separate, enumerated power. Nevertheless, books on Constitutional Law routinely treat this first clause as having two distinct powers: to tax and to spend. Textually, however, the clause states only one power which is the power to tax (in order) to pay debts and provide for the common defense and general welfare of the United States.

The Supreme Court has, at times, had to struggle with whether congressional legislation which purports to impose a tax  is in fact a tax when its purpose appears to be regulatory, e.g., a tax on gambling which was illegal at the time.  If the clause in fact grants a single power which ties taxes to paying debts and providing for the common defense and general welfare, then the issue changes.  Rather than an issue of whether the tax is really a tax, the question becomes whether – even if it is a tax — it meets the purpose language of the text.  If so read, regulatory taxes that do not raise revenue to pay government expenses would become constitutionally questionable. In other words, a reading of only the taxing language of the text – I suggest – has resulted in giving Congress regulatory powers it does not possess under a reading of the language as a single power.

Incidentally, this kind of careful attention to the text is not “strict” or “narrow” construction. It is textualism of the kind that Justice Scalia writes and practices.  As he says, he is not a “strict constructionist.” He attempts to give words in the Constitution their full meaning without either narrowing or broadening their legitimate sense.

Another mischaracterization of this clause refers to it as “the General Welfare Clause.” If Congress had a power simply to legislate for the “general welfare,” there would be no need to list any other powers.  Under such a construction of the Constitution, the federal government would in no way be a limited one.  Few, if any, students of the Constitution, however, would openly claim Congress has such unlimited power.  Nevertheless, the spending language in the clause – viewed as distinct from the taxing language –can be distorted to achieve the same unlimited power.

As discussed in United States v. Butler (1936), one of the few Supreme Court cases to address the spending language of the clause, the clause has been a matter of dispute nearly since the beginning when Madison and Hamilton disagreed over its interpretation. (The legislation addressed in Butler also involved a tax collected to fund the spending.) Madison contended that the power to tax and spend for the general welfare had to be tied to one of the other enumerated powers.  Hamilton, and later Justice Joseph Story, disagreed. They said the power was a separate power, limited only by the requirement that its exercise be for “the general welfare.” Although Butler adopted the Hamilton-Story position, it declared the particular legislation unconstitutional.

If the discussion above regarding the use of “To” and “to” means that the clause does not contain two powers, it should also establish that the clause contains a power separate from those which follow, as Hamilton and Story contended. If then Madison was incorrect, does this clause create a power so broad that it makes the enumeration of other powers superfluous? Both Justice Story and the Butler opinion recognize that there must be some limits on spending for the general welfare, but Butler did not elaborate.

The Supreme Court has since ignored Butler’s notion that the clause contains any justiciable limits.  A year after Butler, the Court upheld the parts of the Social Security Act dealing with unemployment compensation, Steward Machine Co. v. Davis (1937), and old-age benefits, Helvering v. Davis (1937). In Buckley v. Valeo (1976), the Court rejected a challenge to federal spending that financed presidential campaigns, saying “[i]t is for Congress to decide which expenditures will promote the general welfare.”

It may be that the term “general welfare” has acquired a meaning that, at least in Congress, extends well beyond the interpretation of Hamilton and Story.  For Hamilton who promoted infrastructure spending on canals and bridges, the spending was not for local “pet projects” or so-called “earmarks.” Rather, such spending was to promote economic development generally; it benefitted more than a single state. Underlying the term “general welfare” seemed to be the idea that the federal government could spend on matters that generally benefitted the whole country. It was assumed not only that state governments would tax and spend on projects that benefitted their own state, but that they would not and should not tax and spend on projects to benefit other states.  As with the original understanding of the Commerce Clause and other provisions in the Constitution, Congress was given the taxing and spending power for the general welfare in order to do for the states as a whole what none of them individually could do.

Congress’s idea of spending for the general welfare has often been used to “persuade” states to accept policy regulations which Congress lacks any power directly to impose.  Congress achieves the regulatory end through conditioning receipt of the funds.  Certain conditions attached to spending are not only reasonable, but required. Accordingly, the federal government ensures the proper use of funds by imposing accounting and reporting requirements and establishing other standards for spending the money.  Congress, however, also manipulates conditions in what amounts to a form of “bait and switch;” it adds new conditions after states have become dependent on federal funding for such programs as highways and Medicaid. These new conditions are ones that a number of the states likely would not have accepted when the program began because they impose burdensome obligations or infringe on a state’s legislative powers.  States, nevertheless, almost always accept the new conditions because they claim to have “no choice” — that is, except to drop the program or pay for it with state funds.

Rather than raise their own state taxes, with no diminution in federal taxes, states take the money because other states do and/or they get some return on the federal taxes paid by their citizens.  Thus, the states at least acquiesce in – if not lobby for – high levels of federal spending with the accompanying federal taxes and/or deficits to support that spending. With almost all states participating in those spending programs directed to the states, the Congress can claim that those programs address the “general welfare.”

States have not been successful before the Supreme Court in claiming Congress’s imposition of new conditions is unconstitutional because they “coerce” states which have “no choice” other than to agree to the new conditions.  In South Carolina v. Dole (1987), the Court rejected a constitutional challenge to Congress’s direction that the Transportation Department withhold 5% of the highway funds due to a state if the state did not prohibit persons under the age of 21 from purchasing or possessing alcoholic beverages.  Congress certainly had no power under which it could directly establish a national drinking age.  The Constitution left such police power issues with the states.  Nevertheless, the Court determined, inter alia, that drunk driving was a “national concern.” Of course, it was not a concern that each state was incapable of addressing individually.  Justice O’Connor argued in dissent that the condition was an unconstitutional infringement on state powers and noted that the Court’s discussion of federal spending in United States v. Butler (as distinct from other reasoning in the case) remains valid.

The last part of the clause (“all Duties, Imposts and Excises shall be uniform throughout the United States;”) guarantees that one region of the country having more voting power in Congress cannot use that power to disadvantage other states economically.  This provision ties in with the prohibition on taxing exports (Art. 1, Sect. 9, cl. 5) and the power over commerce among the states and with foreign nations (Art. 1, Sect. 8, cl. 3). It represents one example of how the Constitution, as finally drafted, coordinates its different parts into a comprehensive and consistent plan of government.

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University.

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19 Responses to “March 18, 2011 – Article I, Section 08, Clause 01 of the United States Constitution – Guest Essayist: John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University”

  1. Ralph T. Howarth, Jr. says:

    Hamilton erred in that he did not pay attention to what was deliberated at the Philadelphia Convention 1787. The following depicts how it was brought up for Congress to cut canals; but it was denied, even on a pretext that a state could possibly inhibit the general welfare by NOT cutting canals because the risk of giving Congress the power to cut canals would likely encroach into federal run central banks and merchantile monopolies:

    Records of the Federal Convention
    Published Under Direction Of The United States Government
    From The Original Manuscripts.
    Reprinted 1895 Albert, Scott, Chicago, Page 725
    Article 1, Section 8, Clause 7

    [2:615; Madison, 14 Sept. 1787]

    Doctor Franklin moved to add after the words “post roads” Article I Sect. 8. “a power to provide for cutting canals where deemed necessary”.

    Mr Wilson seconded the motion.

    Mr Sherman objected. The expense in such cases will fall on the United States, and the benefit accrue to the places where the canals may be cut.

    Mr Wilson. Instead of being an expense to the U. S. they may be made a source of revenue.

    Mr. Madison suggested an enlargement of the motion, into a power “to grant charters of incorporation where the interest of the United States might require, and the legislative provisions of individual States may be incompetent”. His primary object was however to secure an easy communication between the States, which the free intercourse now to be opened seemed to call for. The political obstacles being removed, a removal of the natural ones as far as possible ought to follow.

    Mr. Randolph seconded the proposition.

    Mr King thought the power unneccessary.

    Mr Wilson. It is necessary to prevent a State from obstructing the general welfare.

    Mr King — The States will be prejudiced and divided into parties by it. In Philadelphia and New York, it will be referred to the establishment of a bank, which has been a subject of contention in those cities. In other places it will be referred to mercantile monopolies.

    Mr. Wilson mentioned the importance of facilitating by canals the communication with the Western Settlements. As to Banks he did not think with Mr. King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.

    Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.

    The motion being so modified as to admit a distinct question specifying & limited to the case of canals.

    New Hampshire — Massachusetts — Connecticut — New Jersey– Delaware –Maryland — North Carolina — South Carolina — no
    Georgia — Pennsylvania — Virgina — aye [ Ayes–3; noes–8. ] The motion was not agreed to.

    • yguy says:

      Hamilton erred in that he did not pay attention to what was deliberated at the Philadelphia Convention 1787.

      […]

      I know of no reason to think he was unaware of it, nor do I see anything here that contravenes his interpretation – unless one assumes the Madisonian interpretation per Federalist #41 is binding, for which I’ve never seen a compelling argument; and when, by virtue of the availability for purchase of the Louisiana territory, push came to shove, neither, it seems, did Madison himself.

      • Ralph T. Howarth, Jr. says:

        Well, Congress was denied the power to cut canals; but later justified doing so another way without an amendment, let alone establishing a central bank to boot. It is clear that the founder’s intents were to explicitly grant powers to the federal government; else what is not is reserved to the states. What is interesting to note is in after the constitution was completed for submission to the states, it was also thought worthy that the federal seat also take up promulgating education, Ah! But that required an amendment too! The delegates demurred doing so on account that one brought up the point that the federal seat already has the power to setup a national university in Washington, D.C., that all the states could emulate to. That seemed to be satisfactory to the delegates at the moment. Yet, several federal administrations have come and gone in recent years making all sorts of persuasive arguments that education affects prosperity in the lives of citizens who enter the marketplaces of commerce, therefore it is a Necessary and Proper Clause to regulate education by virtue of the Commerce Clause power of regulation. With such sophistry, anybody can accede any power to the federal government to no end. Then the amendment process is usurped and moot.

        We also have the president of the Philadelphia Convention whose Farewell Address said this also:
        “If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
        — George Washington, 1796

        The Louisiana Purchase also gets mis-construed in constitutional arguments. It is known and taught that Jefferson was not given a grant of power by the Constitution to purchase territory; but as one who is granted the power to negotiate a treaty, Congress did foot the bill. Otherwise, without Congress pony up the money, the deal would have fallen apart. Just because such an event happened does not give license to presume such a power is granted the President. President Teddy Roo did a similar thing by issuing his “executive agreements” with pan American states. Yet, if Congress does not consent to it, then the agreement is not permissible. In addition, without a treaty, a president has little assurance that the next president will just reverse what was done. Nowadays it is known in modern International Law that agents of states make agreements to treaties; but government of states approve the agreements, else wise they are without force. Since many monarchies have been replaced by republics of a sort, it has been the phenomenon anyway that treaties and agreements are subject to state approval as the agents, consuls, and delegates of states are not the principals.

        • yguy says:

          What is interesting to note is in after the constitution was completed for submission to the states, it was also thought worthy that the federal seat also take up promulgating education, Ah! But that required an amendment too!

          That the Framers rejected such an amendment does not, IMO, demonstrate that such a power cannot reasonably be inferred from A1S8C1.

          Yet, several federal administrations have come and gone in recent years making all sorts of persuasive arguments that education affects prosperity in the lives of citizens who enter the marketplaces of commerce, therefore it is a Necessary and Proper Clause to regulate education by virtue of the Commerce Clause power of regulation. With such sophistry, anybody can accede any power to the federal government to no end. Then the amendment process is usurped and moot.

          Seems to me the Framers rather left the door open for the taking of such liberties by inclusion of “and provide for the common Defence and general Welfare of the United States”, which appears to be mere surplusage under the Madisonian interpretation.

          The Louisiana Purchase also gets mis-construed in constitutional arguments. It is known and taught that Jefferson was not given a grant of power by the Constitution to purchase territory; but as one who is granted the power to negotiate a treaty, Congress did foot the bill.

          If the LP was constitutionally problematic, it is hardly proper to hang it all on Jefferson, since Congress was nowhere granted explicit authority to purchase property from foreign entities. Thus, if the deal was unconstitutional, it seems there was no effective opposition to it; but if it was, the power to make it can only be inferred from A1S8C1.

          • Ralph T. Howarth, Jr. says:

            On canals:
            That the Framers rejected such an amendment does not, IMO, demonstrate that such a power cannot reasonably be inferred from A1S8C1.

            >Does not matter. The states never ratified even such an inferred power. That is bait and switch. If that were true then we would not have a constitution because the states were dead against the federal government adding on more powers under its own volition than was granted. As this is a federal system of government, and not a national one, the matter of federal powers rests on: the states giveth, and the states taketh away. But something that is unconstitutional, as much as such a phrase makes a government act as being like taboo, does not necessarily mean that certain federal actions are not a good idea.

            On education:
            Seems to me the Framers rather left the door open for the taking of such liberties by inclusion of “and provide for the common Defence and general Welfare of the United States”, which appears to be mere surplusage under the Madisonian interpretation.

            > The “General Welfare” clause was copied from the Aritcles of Confederation nearly word for word, and whatever state constitutions before that: “general” meaning “not particular” and “welfare” meaning “happiness or prosperity”. As much as many today who do not regard the intents of the founders, and make the constitution mean whatever private interpretation is to them, and take the General Welfare Clause to be a grant for running welfare programs, the clause apparently is an “open door” for such interpretation on account that many do. But at the time, it certainly is not an intentional “open door” otherwise it would render the federal form of government of scope moot and make a national one with full scope of plenary powers on any sophistry a regime wishes.

            If the LP was constitutionally problematic, it is hardly proper to hang it all on Jefferson, since Congress was nowhere granted explicit authority to purchase property from foreign entities. Thus, if the deal was unconstitutional, it seems there was no effective opposition to it; but if it was, the power to make it can only be inferred from A1S8C1.

            >True it is improper to hang on Jefferson’s head any folly of the LP. Since when is buying propety from foreign countries not a treaty power? The constitution subjects treaty power and the Law of Nations in the federal seat and forbids states from doing the same of their own accord. The Treaty of Paris, et.al., that ended the American Revolution ceded lands to the Mississippi and the Northwest Territory to the individual colonies as individual states, and under the Articles of Confederation collectively as the United States of America. As state constitutions did not forbid state actions in treaties with nations, they were free to annex land even if their state constitutions did not say so by virtue of being a free state. The federal is granted power to buy dockyards, and needful buildings, but not land from a foreign state?

  2. Jon says:

    Thank you Professor Baker. I was hoping you would have expanded a bit more on Congress and the Courts interpretation (and use) of “the original understanding of the Commerce Clause”. I’m quite aware of my limitations (didn’t graduate high school) and sincerely appreciate the access to more learned points of view, such as yours.

    My interest in the commerce clause stems from its inclusion in the “findings” portion of the affordable health care act. I’ve read a number of related Supreme Court rulings and in particular found the “Gun Free School Zones Act” oral arguments fascinating as I was able to listen to them. In all of this I was genuinely surprised to learn just how much Federal legislation is theoretically based on the commerce clause. I find it more than a bit discomforting to note that the Court has (If I have this right) has never defined the “outer limits” of its jurisprudence regarding the commerce clause.

    From this layman’s perspective without a defined “outer limit” the commerce clause hasn’t just become, but rather has been and remains, a blank, and lately increasingly more dangerous check (as in check book). I like to say the ‘commerce clause is our common cause’ for those of us concerned with constitutionally limited Federal power.

    If you can bear the analogy, calling my congressman regarding every offensive piece of legislation they pump out is like patching hundreds of cracks in a dam and not plugging the hole at their source. The cracks jsut keep coming.

    Again thank you for taking the time to help us understand our Constitution.

  3. Ron Meier says:

    Well, we’re finally into the guts of it, aren’t we? Interpretaton by attorneys over the past 200 years has taken liberties on the lack of foresight of our finders in anticipating just how far the attorneys of the future would go to change the original intent of their vision of a workable Republic. This reminds me of Clinton’s reply “it depends on what the meaning of the word is is.” Clinton, without intending to do so, highlighted exactly what the problem has been over the past 200 years. Now we are trying to determine “what the meaning of the word ‘to’ is.” It all goes back to intent; it seems to me, as a non-attorney, that very few people in Congress have ever really cared about our founders’ intent. They’ve decided that their current interpretation is far more important than what a bunch of tired old men thought more than 200 years ago. Very interesting stuff. Thanks Professor Baker for shedding some light on what I think is the core issue of our Republic today.

  4. Barb Zakszewski says:

    Interesting how that general welfare clause has been stretched like a Gigantic rubber band, from one end of the Nation to the other. Such liberties have been taken…When exactly did we go from the limited powers of the Federal government and Congress, to virtually unlimited powers of the Feds and Congress to impose their will on the states..That is why I applaud governors of states who recently turned down money for high speed “bullett” trains, and those states that turned down stimulus money last year… We MUST return this Nation to its Constitutional roots before it is too late!!!

    • Ralph T. Howarth, Jr. says:

      This would fix that problem fast. From my Congress 2.0 list of proposed amendments:

      Article Three: State Revenue Amendment
      1) No revenue shall be appropriated for any State budget except for taxes levied within the State.
      2) All taxes collected within a State shall be deposited in a State held escrow, the outlays of which shall be paid to the Treasury of the United States the portion of which is collected as federal income, among other direct taxes in that State.

  5. Ralph T. Howarth, Jr. says:

    I read a tid-bit on tax and spend the other day that suits well here. One point of Congress spending on programs that it is not Constitutionally granted to spend on is that it takes tax dollars away from the granted powers such that the core powers of the federal government are weakened and lose effectiveness. We see that happening now as special interests vie for projects that, ironically, actually do not serve the general welfare.

  6. Janine Turner says:

    Wow! Professor Baker I thank you for your fabulous essay!! It is truly fascinating to learn about this heavily debated clause both throughout history and still today. The differences in the “To” and “to” are revelatory, as are the differing interpretations of Madison, Hamilton and Supreme Court Justices. I am also intrigued with your perspective of Hamilton’s interpretation of the clause – that it was meant to do for the states what they could not do for themselves and that all other issues should be left within the states’ sovereignties. Today, however, we are still deciphering the true intent. What a mess. Interesting to note that the states have enabled the government by buying into the federal mandates because it was easier. States and our country’s citizens are paying for the consequences now. Standing up to the federal government is the task at hand- reclaiming state’s rights starts with “just saying no.” Like a drug, taking the money, though perhaps fraught with ambivalence at first, becomes a habit. Breaking the habit takes strength, perseverance and tenacity. The call for consistency lies with the voter – the genius of the people – who provides the ultimate voice in a Republic, hence holding the representatives and the President accountable. To make correct choices and to steer the ship in the right direction, we the people must be enlightened. “Liberty cannot be preserved without a general knowledge among the people.” John Adams said it best. I am so thrilled that we have this forum, special scholars, such as yourself, to educate us and all of the interested citizens who are blogging with us!
    God bless,
    Janine Turner

  7. yguy says:

    As this is a federal system of government, and not a national one, the matter of federal powers rests on: the states giveth, and the states taketh away.

    This is a tautology. The point of contention here is what powers the states can reasonably be deemed to have given according to the plain language.

    On education:
    […]

    As much as many today who do not regard the intents of the founders, and make the constitution mean whatever private interpretation is to them, and take the General Welfare Clause to be a grant for running welfare programs, the clause apparently is an “open door” for such interpretation on account that many do.

    It’s not hard to make a case against most giveaway programs because they clearly don’t provide for the general welfare of anyone but petty government tyrants; but while the same could be said for federally controlled education, it’s not as easy to make the case against it in principle.

    >True it is improper to hang on Jefferson’s head any folly of the LP. Since when is buying propety from foreign countries not a treaty power?

    Since the Constitution, which separates the treaty power from the power to appropriate funds by virtue of requiring approval of the full Congress for the latter but not the former, became the supreme law of the land.

    The federal is granted power to buy dockyards, and needful buildings, but not land from a foreign state?

    I would say it is, but not solely on the basis of the treaty power. Absent the the phrase “and provide for the common Defence and general Welfare of the United States”, that power would not exist.

  8. Ralph T. Howarth, Jr. says:

    yguy says: “I would say it is, but not solely on the basis of the treaty power. Absent the the phrase “and provide for the common Defence and general Welfare of the United States”, that power would not exist.”

    Ah, the spending clause…the power of the purse! But that is just it. It is the spending clause, and the object of that spending is the common defense and general welfare. It is not a grant to spend on anything and everything of common defense and general welfare in any exclusive sense, and certainly is not a grant of unlimited spending under the color of common defense and general welfare. This is because it is a federal government and not a national one. Act1Sec8 therefore is a list of enumerated powers. But under a national government, then that list of enumerated powers would be mere suggestions. The spending clause is there because it would otherwise need be declared elsewhere on, say, the President, or otherwise. The spending is as the mortar of the federal government that gives the enumerated powers…the bricks…effect.

    • yguy says:

      It is not a grant to spend on anything and everything of common defense and general welfare in any exclusive sense, and certainly is not a grant of unlimited spending under the color of common defense and general welfare. This is because it is a federal government [].

      How exactly does the former follow from the latter?

      The spending clause is there because …

      We all know why it’s there. We’re talking about a specific phrase within that clause, which appears on its face to imply spending powers beyond those enumerated in the remainder of A1S8.

      • Ralph T. Howarth, Jr. says:

        It is not a point that can be compromised. You cannot make a national power out of one clause that is only the object of the actual power to spend, and have a federal government. You cannot have both. It is either one or the other. The clause is not the power. You are homing in on a clause and making a power out of it. Stop getting hung on a modifier clause in the scope of a federal form of government. It is only a descriptor on what the object of the spending power is.

        • yguy says:

          Ralph, I have no idea what value this “national versus federal” distinction has in this context. In particular, I fail to see how funding public education is a national power whereas purchasing property from foreign entities is not, when both rely on A1S8 for their justification.

          Stop getting hung on a modifier clause in the scope of a federal form of government. It is only a descriptor on what the object of the spending power is.

          That is trivializing it to the point of absurdity when on its face it presents a veritable Pandora’s Box full of possibilities, for good or ill.

          • Ralph T. Howarth, Jr. says:

            Federal: states grant powers to the central government.
            National: central government grants powers to the states, which cease to then be states but are rather provinces.

            The US Constitution is written first as a Positive Law document, telling what the central government can do, rather than a Negative Law document, telling what the central government cannot do. The Bill of Rights then was added on as a negative on the central government; but only the central government accepting for the 2nd Amendment, which was resolutely followed by the Militia Act of 1792 requiring all abled bodied men to own a musket and have a couple dozen or so rounds of ammunition.

            The federal form of government is what frames the context the spending clause confers to “provide for the common defense and the general welfare of the United States.” It is a spending clause with the object of paying for the following enumerated A1S8 powers the states gave the federal government. It is only a descriptor of the nature of the spending power, and is not a grant of power to spend on anything. If it be Necessary and Proper to the execution of the enumerated powers, then Congress may spend on those things too. To interpret otherwise would then only turn the A1S8 to be a list of suggested powers where the spending power could be conflated to include any national object. The end run then is Legislation by Appropriation, where the spending becomes defacto law and policy. At that point, the federal government ceases to be a federal government and has become a defacto national government that is able to not only presume more powers; but by the supremacy of the Law of the Land, able to trump just laws and plenary powers of the States.

            In debate on subsidizing hurting New England fisheries, “If Congress can employ money indefinitely to the “general welfare,” and are the sole and supreme judges of the “general welfare,” then they may take the care of religion into their own hands; they may appoint teachers in every state, county, and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the United States; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, everything from the highest object of state legislation down to the most minute object of police would be thrown under the power of Congress, for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the “general welfare.” Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: 1936), Vol. 4, pp. 429, James Madison on “The Cod Fishery Bill,” February 7, 1792.

            Two specific aspects of the Constitution were intended to prohibit such federal encroachments: (1) the Enumerated Powers Doctrine, and (2) the Bill of Rights

  9. yguy says:

    The federal form of government is what frames the context the spending clause confers to “provide for the common defense and the general welfare of the United States.” It is a spending clause with the object of paying for the following enumerated A1S8 powers the states gave the federal government.

    Then the phrase I quoted is extraneous, since yours would be a perfectly reasonable interpretation without it – not to mention that the Louisiana Purchase would have been unconstitutional.

    In debate on subsidizing hurting New England fisheries, “If Congress can employ money indefinitely to the “general welfare,” and are the sole and supreme judges of the “general welfare,” then they may take the care of religion into their own hands;

    That is prohibited by 1A. As for the rest of it, I don’t know what your point is. By the plain meaning of A1S8, the premises are correct; and if Congress deems either public education or the purchase of property from foreign entities as improvements to the general welfare of the US, it has authority to tax and spend accordingly, whether either of those powers are specifically enumerated in that section or not. If we don’t like that, the remedies are to elect a new Congress or amend the Constitution.

  10. Ralph T. Howarth, Jr. says:

    yguy said: Then the phrase I quoted is extraneous, since yours would be a perfectly reasonable interpretation without it – not to mention that the Louisiana Purchase would have been unconstitutional.

    Once again, LP falls under the Treaty Power as Necessary and Proper as purchasing land from any foreign country and so can be constitutional.

    …“If Congress can employ money indefinitely to the “general welfare,” and are the sole and supreme judges of the “general welfare,” then they may take the care of religion into their own hands;

    yguy said: That is prohibited by 1A…

    Once again, the Constitution is a positive law document; and the Bill of Rights a negative. The hazard of adding a set of negative amendments, that is to say, what the federal government cannot do, is that it opens interpretation to what the government can or cannot do. The Bill of Rights actually staved off another Constitutional Convention in order to keep the first one. So just because amendments came about after, does not imply other powers under the spending clause to anything Congress so deems fit. The states that ratified the Constitution absolutely were dead against such an interpretation of the spending clause, which is what that New England fishery debate is about…not allowing the “general welfare” to take on any other meaning than the powers enumerated in the Constitution. Any sitting Congress that goes and takes on a take over of education would serve well to pay attention that such a motion was denied by the delegates who wrote the Constitution. And as it is quite understandable that newly elected Congressman cannot know everything concerning the law, we have judges who serve for life whose moral duty is to uphold what the states and prior legislatures had ratified or passed above the ignorance of new comers.

    Once again, this is a federal form of govenment, and not a national one. That is the basis of the governing document of the Constitution, and it is an extremely fundamental one that few who hold power seem to comprehend. The “General Welfare” Clause indeed can seem to be extraneous, and indeed could be reduced to just an abbreviated spending power with no descriptor or modifier. But then people will still point to it and extrapolate that they are not explicitly denied to not spend on anything from the most particular of affairs like bailing out a fishery or to the relief of Haiti refugees (another motion made early on the Congress floor), to gargantun enterprises like taking over and running education, health care, manufactures, labor, after longevity insurance (a.k.a. Social Security Insurance mistakenly taken to be a retirement pension…it is an insurance against the eventuality that you may live longer than expected), et.al., to no end. So the General Welfare Clause is a descriptor of the nature of the spending that it must not be particular to within a state; but among states, not license of any and all general powers to be had.

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