Tuesday, October 23, 2007

The oldest Constitutional debate

I said earlier that if there was one thing I would change about the Constitution it would be to clarify "general welfare". This may not actually be the oldest, but it goes pretty far back.

The spending clause says "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..." Thomas Jefferson and James Madison interpreted that as grating the Congress the power to raise money in order to fund the exercise of powers otherwise enumerated, a position that would seem to be consistent with the Convention, given that they rejected a proposal to explicitly authorize the federal government to spend on internal improvements. Alexander Hamilton, who supported that proposal, interpreted it broadly enough to cover anything (including, say, a bridge serving a small island or a monument commemorating Woodstock) though he later brought his view more in line with Monroe, who believed it covered only those expenditures that were "general" in nature, as opposed to benefiting groups in specific geographies.

Notably Hamilton's view was shared by John Adams and John Quincy Adams, and cost both of them re-election as the people rejected this expansive power. Given the history of Congress restricting its spending in line with a thought that they were allowed only to do those things ennumerated, going all the way to the Civil War, it seems clear to me that Jefferson captured the meaning intended by the Convention. I can't help wishing, though, that they had expressed that intent more clearly. It is perhaps true that even if they had said taxes may be raised "for the execution of powers herein enumerated" the New Deal Court would have found some way to finagle a general spending power much as they created a power to regulate anything which might appear in the same book as interstate commerce, but at least if the Convention had used clear wording I could clearly say the Court was wrong.

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