The Issues
So…where in the Constitution does it say that the federal government has been granted permission to pay for “health care” and education?
And if you say “general welfare,” please turn in your voter registration card; you obviously don’t understand the Constitution and are a danger to our Republic.
September 25th, 2004 at 6:37 pm
What is, “It doesn’t,” Alex.
But I’m currently learning why it does. We’re in that 1890-1910 part of American History. Looks like TR may have had something to do with it.
September 25th, 2004 at 8:43 pm
Article I, Sec. 8: “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.”
That’s a plenary power to tax and spend on anything Congress wants to tax and spend for. It’s also the reason Congress routinely bribes the states to do stuff Congress could not do itself. It’s not to be confused with the “general welfare” clause of the preamble, which authorizes Congress to do fuck-all.
September 26th, 2004 at 8:59 am
I disagree. That bit about “common Defence and general Welfare,” as Madison explicitly states in Federalist 41, is supposed to be a “general phrase…explain[ed] and qualif[ied]…by a recital of particulars” and not “an unlimited commission to exercise every power
which may be alleged to be necessary for the common defense or general
welfare.”
Now, I know you are a lawyer, and I’m aware that the courts in general do not agree with me. Do you, in all seriousness, believe that what you posted is the way the Framers of the Constitution intended that clause to be interpreted? What is taught in Constitutional Law classes?
September 27th, 2004 at 2:24 am
It’s certainly taught that way in con law classes. I also have to concede that it’s right – undesirable, but right. Note that Article I, Sec. 8 consists of a long laundry list of enumerated powers. One is the power I mentioned, to tax and spend for the general welfare. Another is the power to create post roads. Another is the power to regulate foreign and interstate commerce. Etc., etc. Courts have consistently held that each is a separate enumerated power of Congress, that may be exercised without depending on any of the others.
Set aside the question of whether or not Congress should have such sweeping powers. Focus on the plain language of Art. I, Sec. 8. Is it your opinion Congress can only create post roads for purposes of regulating interstate commerce? Declare war only for purposes of coining money? Create a Navy only for purposes of establishing bankruptcy laws? Govern the District of Columbia only for purposes of punishing piracies and felonies committed on the high seas? All of the above only for purposes of enforcing the 14th Amendment (a later enumerated power of Congress)?
If your answer to any of the rhetorical questions is “of course not, duh!” – and it should be – then why would you expect the power to tax and spend for the general welfare to be treated any differently? It’s just one more item on the list.
September 27th, 2004 at 8:36 am
Because it’s not part of the list; as Madison said, it describes the purpose of the list, which follows. It is equivalent to the “well-regulated militia” part of the 2nd Amendment.
September 27th, 2004 at 9:00 am
Let me illustrate: if Congress has a plenary power (as you put it) to “provide for the common Defence,” then why is there also a list involving the Army, Navy, Militia, War, etc? Because those things ARE providing for the common Defence. That is what Congress is allowed to do to provide for the common Defence.
If “provide for the common Defence and general Welfare” were an actual power of Congress, they wouldn’t need the rest of the list.
September 27th, 2004 at 10:00 am
The Madison quote is neat, but at the end of the day, it’s the law itself that decides the issue. Are you sure he was even describing the language that ended up in the Constitution, and not an earlier draft? Regardless, there’s only one grammatical reading of Article I, Sec. 8, and that clearly puts the tax and spend power as the first enumerated power, not some sort of justification clause or preamble, nor even a general rule to be qualified by the particulars. That reading would produce equally absurd results in reverse, as it would limit all congressional actions to taxing and spending, giving Congress no power to do anything else. For example, under your reading, Congress could collect all the taxes and spend all the money it wanted in order to “make Rules for the Government and Regulation of the land and naval Forces,” but it could never actually make those rules.
For the record, I never said that Congress has a plenary power to “provide for the common Defence.” It does not. The first item under Art. I Sec. 8 is a plenary power to tax and spend to provide for the common defense and for the general welfare. That’s not a plenary power to provide for the common defense or the general welfare in other ways. If it were, we’d be the United State of America, as Congress would be free to do directly what it currently can only bribe the states to do.
September 27th, 2004 at 10:56 am
Ok, I wasn’t clear: yes, the power to tax and spend is an enumerated power, but the scope of “common Defence and general Welfare” is limited by the following list.
September 27th, 2004 at 12:00 pm
Try diagramming it as a sentence. You may be able to come up with a construction that makes the tax and spend power the ONLY enumerated power, with all other items merely specific instances of that power. Grammatically, it would work, though logically, it would not (as I have shown above by pointing to certain powers that cannot be exercised by taxing and spending alone). But there is no remotely grammatical way to make most of the first clause a separate enumerated power, but the specific references to “common defense” and “general welfare” a preface to everything else. Those phrases are right smack dab in the middle of the first clause.
You mentioned the Second Amendment before. Here’s the proper analogy: many gun grabbers convince themselves that the reference to a “well regulated militia” in the prefatory justification clause should radically change the meaning of the “right of the people to keep and bear arms” in the main clause. I submit that you are committing the same error as they are: forcing an ungrammatical, implausible reading on a constitutional text to make it say what you wish the Constitution said, and not what it actually does say.
Returning to the Federalist Papers, another possibility that did not occur to be before is that perhaps Madison was lying. It wouldn’t be the first or last time that a politician did that, selling a radical legislative proposal by making it sound more modest than it really is. What did the Anti-Federalist Papers have to say about it?
September 27th, 2004 at 12:27 pm
Well, now, I suppose he could have been lying, and it WAS disputed point.
September 27th, 2004 at 1:30 pm
That sort of thing happens all the time. Right now in CA, the criminal lobby has a voter initiative pending that would substantially water down our three strikes law. The initiative is horribly drafted, and is ambiguous as to whether it will allow re-sentencing only for third-strikers, or whether certain first- and second-strikers (e.g., the son of insurance broker Jerry Keenan, who has contributed more than $1 million of his own money toward the campaign) would qualify as well. Its proponents deny it will affect first- or second-strikers, but some have admitted to having already begun drafting briefs arguing the opposite.
September 27th, 2004 at 2:35 pm
I guess I will have to concede to you here; I cannot say that the text clearly supports my interpretation.
I do, however, maintain that the intent was not to grant Congress such a broad and vague power. My evidence may be fake, but it is accurate.
October 19th, 2004 at 6:29 pm
weird