From Veeshir (who has left so many helpful comments here that I treat an email from him like a homework assignment), my attention was directed to a perfect — perfectly dreadful that is — example of the contempt some of……

I agree with Ed’s arguments, but in order to make them stick, we’ll need to declare Social Security and Medicare unconstitutional. That would be fine with me, but I doubt that it’ll happen. It’s like wishing the Supreme Court would give up on judicial review or creating law by judicial fiat. I’m not holding my breath.

ajacksonian on October 26, 2009 at 9:27 AM

Very well done. I really liked your whole post, with the minor exception of your hypothetical concession to the notion that the federal governmetn might have a role in health care.

I would also point out that in discussions of federal power, one cannot carry out a full analysis without addressing the fact that almost all social issues were left to the states and allowed for anyone to find a state that fashioned its laws and benefits to their liking. Further, along this line, is that states can be trusted to deal with social issues as states do not have the ability to create or print money and destroy our national monetary system (the basis of our federal government, and without which our federal government would cease to exist). The federal government, on the other hand, has the ability to create money and is, therefore, a bottomless pit for which any runaway programs will lead to the ultimate disaster. We can survive bankrupt states (and those states earn their own bankruptcies) but we cannot survive a bankrupt federal government.

One other aspect of the overarching problem comes from the federal courts forcing states on issues that fall outside of the powers of the federal government. This interference has been accepted far too easily and quietly, and has done even more damage than Congressional enchroachment on the state’s powers have done.

Thanks again for your very well thought out, and well-written, post, ajacksonian.

Some who have not denied the necessity of the power of taxation have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing had not its origin with the latter.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the Articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare.” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare and allowed by the United States in Congress shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

The point brought up is that there are those who will ignore the semi-colon or otherwise misconstrue the actual verbiage in light of expedient legislation. The argument is not one of the logic involved, which those same Anti-Federalists actually point out, but one of human nature and the nature of governments over time moving away from restricted rights for government unless there are some very and extremely harsh checks on that power put in place.

Hamilton’s goal of a ‘robust role’ for government in commerce would be addressed by the veto of the US National Bank Veto of 1832, which addresses the very concerns about stare decisis, powers and limitations on government:

It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial, and executive opinions against the bank have been probably to those in its favor as 4 to 1. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

But in the case relied upon the Supreme Court have not decided that all the features of this corporation are compatible with the Constitution. It is true that the court have said that the law incorporating the bank is a constitutional exercise of power by Congress; but taking into view the whole opinion of the court and the reasoning by which they have come to that conclusion, I understand them to have decided that inasmuch as a bank is an appropriate means for carrying into effect the enumerated powers of the General Government, therefore the law incorporating it is in accordance with that provision of the Constitution which declares that Congress shall have power ” to make all laws which shall be necessary and proper for carrying those powers into execution. ” Having satisfied themselves that the word “necessary” in the Constitution means needful,” “requisite,” “essential,” “conducive to,” and that “a bank” is a convenient, a useful, and essential instrument in the prosecution of the Government’s “fiscal operations,” they conclude that to “use one must be within the discretion of Congress ” and that ” the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution;” “but, ” say they, “where the law is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground.”

The principle here affirmed is that the “degree of its necessity,” involving all the details of a banking institution, is a question exclusively for legislative consideration. A bank is constitutional, but it is the province of the Legislature to determine whether this or that particular power, privilege, or exemption is “necessary and proper” to enable the bank to discharge its duties to the Government, and from their decision there is no appeal to the courts of justice. Under the decision of the Supreme Court, therefore, it is the exclusive province of Congress and the President to decide whether the particular features of this act are necessary and proper in order to enable the bank to perform conveniently and efficiently the public duties assigned to it as a fiscal agent, and therefore constitutional, or unnecessary and improper, and therefore unconstitutional.

Without commenting on the general principle affirmed by the Supreme Court, let us examine the details of this act in accordance with the rule of legislative action which they have laid down. It will be found that many of the powers and privileges conferred on it can not be supposed necessary for the purpose for which it is proposed to be created, and are not, therefore, means necessary to attain the end in view, and consequently not justified by the Constitution.

Here, some 43 years on from Federalist 41, we have the outlay of powers and how they work between the States and the federal government and within the federal government itself.

First off is that precedent, both SCOTUS and legislative, is a dangerous source of authority especially when examining the constitutional powers granted to the federal government. You do not ignore previous decisions, but they must not trump reasoning on constitutionality.

Second each arm of the federal government has separate and independent powers, not co-equal powers. This is forgotten and misconstrued in the modern day, but these separate powers were designed as independent checks and balances on federal government so that each branch has its review of constitutionality independent of the other branches. Congress is to create laws that are constitutional, the President has the veto power to reject laws that are unsound, improper, unnecessary or unconstituional. The SCOTUS is given grant to judge on the constitutional basis of laws and strike down those not adhering to the constitution. These are in no way equal powers, but separate and independent powers. So just as it may be within the scope of power of Congress to do something, it must be judged first by the President as necessary and proper exercise of powers, and judged by the SCOTUS on those grounds examining their independent powers in that judgment.

Third and not to be forgotten, is that there needs to be a general assent to legislation from the States and the people, and acknowledging that such legislation is desired from those levels and can be executed via necessary and proper laws that adhere to the constitution.

Thus with health care and the powers granted to government we hear rejoinders on:

- Precedent – A dangerous source of authority regarding constitutionality as prior judgments may not have taken the full scope and power of the constitution into consideration as it regards other areas of legislation and law. When judging the constitutionality of a law, the restricted scope of prior decisions may not represent a true reading of those power grants for a particular statute. In health care and similar areas there are few arguments utilizing Amendments IX and X, and if the court has been remiss in the past in considering those, than those grounds can serve as a basis for new suits on legislation to call into question the necessary and proper part of powers granted to the government when enacting laws.

- Necessary and Proper – Even granted that the federal government may have a role in health care, can Congress create a necessary and proper law that adheres to its constitutional restrictions as to being wise and fiscally sound, and having the general support of the States and the people? These are not minor considerations and no election changes the fact that the people and States have been indifferent to passing this question on to the federal level. Thus, without that clamor and, indeed, the overwhelming majority not having expressed a want of federal intervention, there is little that Congress can stand on. Even appealing to precedent in this case must take into consideration all of the Congresses that have brought up this question, all the States that have considered it, and the general view of the electorate separately. Precedent does not lay basis for good law without these legs to stand on via precedent: the SCOTUS is not alone in having a history, and all relevant history must be examined as part of new legislation.

- Powers and Privileges – Those organs that Congress creates are made via the powers it has in the constitution. If the powers granted are not necessary to the purpose involved, then Congress cannot create such an organ of the government as it does not have the power to do so. If created without power to do a purpose, then it is not a constitutional object of government nor a means to achieve the ends of Congress. This is a question that must be established in light of mixed precedent, necessity, propriety and the actual extent of the power grant to the federal government. Just because legislation is expedient and towards good ends, that does not give it necessary and proper standing within the constitution, nor power to Congress to enact it.

An unlimited interpretation of ‘general welfare’ wipes all question of limited power away and reduces the Nation to a state of tyrannical government. If the form and function of these powers were so sweeping, the constitution would say so, and yet it defines the exact opposite, particularly when examined in Amends. I, II, V, IX and X. The specific things the federal government cannot do are joined by a general rule that what is not given to the federal is retained by the States and the people. Do note that the understanding of power functions is outlined in Law of Nations, specifically mentioned in the constitution and understood by the founders so that when power grants are seen in the document, it is easy to examine the similar sections of Law of Nations and see what the scope and meaning of the powers are (as witness George Washington’s Neutrality Proclamation) and then examine how those scopes of powers continue as grants from the people to the federal government. From that additional questions in regards to security functions and their organs (CIA, NGA, NSA, etc.) are to be examined in the Commander of the Armies and the Navies power as they are, at heart, military functions for National Security (there may be too many of them, yes, but that is a different argument). Likewise to uphold the laws of the US, Congress has created the FBI for general laws and other organs for things like Immigration and Naturalization. Something like USGS and NOAA come under the part of mapping and charting necessary for military purposes and for understanding the scope and breadth of the Nation. Something like the Dept. of Agriculture, Education, Energy and so on are less viable on these grounds and less accountable as they have fewer functions directly tied to constitutional grants and could, and probably should, receive review on the necessary and proper functions, as well as if these are sound bodies to have or even wanted by the States and the people.

Healthcare under federal regulation? Is it necessary and proper? Is there an established hue and cry over many years for it from the States AND the people? Can it be done within the power grants? Can it be made fiscally sound? Have established precedents considered all aspects of such a power and the restrictions placed on them by the constitution and amendments?

To date I have no good answers that lead to ‘yes’ on these.

YMMV.

Now I wonder if it can save us from Compassionate Fascism.

IIRC The Supreme Court is more Conservative now than it was in 1993.

What am I missing here?

- The Cat

That is if you can read or comprehend as Madison himself understood that if the welfare clause is that open and loose then why stipulate limitations? That would make no sense.

If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. (James Madison, Letter to Edmund Pendleton, January 21, 1792 Madison 1865, I, page 546)

SCOTUS took this question upon itself long ago.

From United States v. Butler, 297 U.S. 1 (1936)

The Congress is expressly empowered to lay taxes to provide for the general welfare. Funds in the Treasury as a result of taxation may be expended only through appropriation. Article 1, 9, cl. 7. They can never accomplish the objects for which they were collected, unless the power to appropriate is as broad as the power to tax. The necessary implication from the terms of the grant is that the public funds may be appropriated ‘to provide for the general welfare of the United States.’ These words cannot be meaningless, else they would not have been used. The conclusion must be that they were intended to limit and define the granted power to raise and to expend money. How shall they be construed to effectuate the intent of the instrument?

Since the foundation of the nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to ap- [297 U.S. 1, 66] propriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. 12 We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

But the adoption of the broader construction leaves the power to spend subject to limitations.

As Story says: ‘The Constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers.’ 13

Again he says: ‘A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them.’ 14

That the qualifying phrase must be given effect all advocates of broad construction admit. Hamilton, in his [297 U.S. 1, 67] well known Report on Manufactures, states that the purpose must be ‘general, and not local.’ 15 Monroe, an advocate of Hamilton’s doctrine, wrote: ‘Have Congress a right to raise and appropriate the money to any and to every purpose according to their will and pleasure? They certainly have not.’ 16 Story says that if the tax be not proposed for the common defense or general welfare, but for other objects wholly extraneous, it would be wholly indefensible upon constitutional principles. 17 And he makes it clear that the powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare.

As elsewhere throughout the Constitution the section in question lays down principles which control the use of the power, and does not attempt meticulous or detailed directions. Every presumption is to be indulged in favor of faithful compliance by Congress with the mandates of the fundamental law. Courts are reluctant to adjudge any statute in contravention of them. But, under our frame of government, no other place is provided where the citizen may be heard to urge that the law fails to conform to the limits set upon the use of a granted power. When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress. How great is the extent of that range, when the subject is the promotion of the general welfare of the United States, we need hardly remark. But, despite the breadth of the legislative discretion, our duty to hear and to render judgment remains. If the statute plainly violates the stated principle of the Constitution we must so declare. [297 U.S. 1, 68] We are not now required to ascertain the scope of the phrase ‘general welfare of the United States’ or to determine whether an appropriation in aid of agriculture falls within it.

Further cases expanded upon Congress’ broad discretion to determine what “General Welfare” means. See, Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937)

In Helvering, Justice Cardozo, writing for the Court, stated:

The discretion [to decide whether axing and spending advances the general welfare] belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment . . . . Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the Nation.” (emphasis added).

The above is why challenges based on Congress’ determination that spending is part of the General Welfare, are essentially doomed to failure.

Social Security and Medicare were NOT created as ENTITLEMENT programs. These two programs were sold to the public as Safety net INSURANCE programs.

Freddy on October 25, 2009 at 2:23 PM

Both Social Security and Medicare are in FACT, unconstitutional, Congress was never granted the authority by the Constitution to pass either and both are usurpations of power by leftist Congress.

CWforFreedom on October 25, 2009 at 5:24 PM

You might also add the quotes;
“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, 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 Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress… Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.” James Madison
AND;
“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.” James Madison

As for your statement about alcohol, I submit that a Constitutional amendment was overkill, and that regulation of all drugs and foods derive from this same clause, coupled with the commerce clauses. In other words, nothing was needed other than a law of congress to ban or regulate the production or transport of alcohol.

unclesmrgol on October 25, 2009 at 6:09 PM

Funny how the closer we get historicly to when the Constitution was ratified, the more they followed it.

Funny how THEY thought they needed a Constitutional Amendment to do it… but soon ignored the Precedent…

unclesmrgol on October 25, 2009 at 2:47 PM

Sorry if I was confusing… but I switched topics half way thorugh…

The first part was pointed at the combination of General Welfare and Commerce clauses needed to make “healthcare reform” Constitutional…. ie… you have to be able to say that you can force someone to buy somthing for the General Welfare…

Second part was pointed at the Air Force…

Key is that instead of AMENDING the Constitution, you just want to ignore it. It would be a simple amendment, if we wanted a seperate Air Force… and then the People and States would have a say in it…

Instead, you IGNORE it… ie reinterpret it to somthing it never said.

The Constitution is a Contract between the people, States, and the Federal Gov… and it says who has what Rights, and who has what POWERS…

We have been willing to let ONE group involved in that Contract, ie the Fed, to IGNORE what is said in the contract, and to “reinterpret” it out of all origional meaning…. instead of renegotiating the Contract (ie Amending) it so the other groups involved in the Contract, have a SAY in that contract.

Why? Because the States lost all their power in the Civil War, and the People have been educated to believe they have no real power…

Constitution, schmonstitution.

Mason on October 25, 2009 at 4:36 PM

But isn’t that a great picture of Robert C. Byrd on the homepage of this thread?

The Selective Service registration has been controversial since its restart in 1980, but it doesn’t require that young men buy military uniforms each year as a consequence. It requires a one-time registration as a means to have a ready mobilization plan for national defense in an emergency — and drafts have long precedent in American history. Even a draftee’s time in the service, however, isn’t permanent, but a temporary service, usually two years.

But it is a mandate. Even as a 20+ year active duty veteran (i.e. I’m getting a retirement), I’ve been required to provide my Selective Service Registration number for government job applications and security clearances.

Furthermore, it is a mandate without merit. This isn’t WWII. By the time those who enrolled under Selective Service were identified, tracked down, and trained, months would have elapsed. If it takes months, it is not a ready mobilization plan but a long-term strategy to enlist troops if the standing forces are unable to keep up with demand. It is also sexist and discriminatory since it does not include females when few jobs in the military are not open to females (not the case in 1980).

OK, then by your interpretation, we can take any two word clause of the Constitution, out of context, and use it.

Therefore… there are two clauses I’ll put together… the phrase “The People” and then “impeachment” and therefore get to the point where the People can Impeach the President.

Romeo13 on October 25, 2009 at 2:56 PM

It takes quite a bit of overreaching on your part to convert my comment into “take any two word clause of the Constitution, out of context…”

The entirety of Article I, section 8, with the words in sequential order, form the basis of my comment. As the only two types of forces which existed at the time the Constitution was written were the land and sea forces, represented respectively by the Army and the Navy. Note that the clauses respecting “armies” (note the plural) and the “navy” indicate that the navy has no time limit on the allocations Congress may make in it’s behalf, while the army is limited to a two year limit on bills for its funding.

So, given that the word “armies” is plural, if we were to rename the Air Force to the Air Army, everything would be ok by your reading, right? In fact, if we were to rename it to the Air Navy, nominally put it under the command of the Navy (and call all of its assets airships) we could get around that pesky every-two-year clause completely.

So, if we ever need a space based military force, we can, to make you happy, call it either the United States Space Navy or the United States Space Army and everything will be peachy-keen. Or am I getting things wrong and you are really saying that we need a Constitutional amendment to allow for the provision of any space-going force whatsoever?

As for your statement about alcohol, I submit that a Constitutional amendment was overkill, and that regulation of all drugs and foods derive from this same clause, coupled with the commerce clauses. In other words, nothing was needed other than a law of congress to ban or regulate the production or transport of alcohol.

If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. (James Madison, Letter to Edmund Pendleton, January 21, 1792 Madison 1865, I, page 546)

At least the SS system worked as intended. Even the end of the Baby Boom wouldn’t necessarily have spelled complete disaster.

Dark-Star on October 25, 2009 at 5:05 PM

It might have lived, but it is still a failure of a program. Soviet Communism lived for decades, too. Social Security was a monumental waste of money, even in the best of times. It never returned anything close to the same as private funds and burnt up umpteen trillions of dollars in waste, fraud, and inefficiency. In addition to that, the future of our entire monetary system has become wedded to the fate of social security, unlike private insurance contracts.

All in all, Social Security has been a miserable failure, has been outperformed by just about every other sort of investment scheme, and has just about destroyed our currency, which means it has just about destroyed our federal government. Nothing was worth this. If people had been able to keep their money and take care of themselves, then the US would have been immeasurably richer right now. Social security cut into the non-inflationary growth of wealth in a large way and that gigantic flow of stolen money that ran through the system served to pervert our federal government at the same time.