Dude. Providing for the general welfare. As if this topic hasn’t been already debated legally ad naseum.
Historical debate and pre-1936 rulings
In one letter,
Thomas Jefferson asserted that “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes
ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”
[14][15]
In 1824
Chief Justice John Marshall described in an
obiter dictum a further view on the limits on the General Welfare Clause in
Gibbons v. Ogden: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."
[16]
The historical controversy over the U.S. General Welfare Clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."
The two primary authors of
The Federalist essays set forth two separate, conflicting interpretations:
[Note 1]
- James Madison explained his "narrow" construction of the clause in Federalist No. 41: "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."
Madison also advocated for the ratification of the Constitution at the Virginia ratifying convention with this
narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.
[17][18]
- Alexander Hamilton, only after the Constitution had been ratified,[19] argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.[20]
This debate surfaced in Congress in 1790, when Madison strongly criticized Hamilton's
Report on Manufacturing and industry on the grounds that Hamilton was construing his broad interpretation of the clause as a legal basis for his extensive economic programs.
[21]
Although Hamilton's view prevailed during the administrations of
Presidents Washington and
Adams, historians argue that his view of the General Welfare Clause was repudiated in the
election of 1800, and helped establish the primacy of the
Democratic-Republican Party for the subsequent 24 years.
[22]
Prior to 1936, the
United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in
Bailey v. Drexel Furniture Co.,[23] in which a tax on
child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the
Commerce Clause. This narrow view was later overturned in
United States v. Butler. There, the Court agreed with
Associate Justice Joseph Story's construction in Story's 1833
Commentaries on the Constitution of the United States. Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers. Consequently, the Supreme Court held the power to tax and spend is an independent power and that the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare.
Shortly after
Butler, in
Helvering v. Davis,
[24] the Supreme Court interpreted the clause even more expansively, disavowing almost entirely any role for judicial review of Congressional spending policies, thereby conferring upon Congress a
plenary power to impose taxes and to spend money for the general welfare subject almost entirely to Congress's own discretion. Even more recently, in
South Dakota v. Dole[25] the Court held Congress possessed power to indirectly influence
the states into adopting national standards by withholding, to a limited extent, federal funds. To date, the Hamiltonian view of the General Welfare Clause predominates in case law.
General welfare clause - Wikipedia.
As Madison wrote the Constitution; he would be the ultimate authority on how to interpret what he wrote. These ad nauseum debates, that you speak if, come from activist judges, who have violated their oath of office:
“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
Oaths of Office: Texts, History, and Traditions
