The normative justification for originalism—honest reading—is compelling and causing cracks in the once solid wall of opposition to originalism.
Michael Greve has two interesting responses to my comments on his book. One of his responses argues that the Madisonian interpretation of the spending power that I recommend is inconsistent with the language of the Constitution. Thus, Michael concludes that we are stuck with the Hamiltonian interpretation of the spending power, whether we like it or not.
I don’t agree. As an originalist, I believe that the Madisonian interpretation, rather than the Hamiltonian one, accords with the original meaning. In a series of two posts, I will explain why. This post criticizes the Hamiltonian interpretation. My next one defends the Madisonian interpretation, using what I think are some new arguments.
First, some definitions. The Madisonian interpretation of the spending power reads the power as limited to spending on the other enumerated powers of the federal government. The Hamiltonian interpretation of the spending power, by contrast, argues that Congress has the power to spend for the general welfare, even if its spending is not authorized by any other enumerated power.
The constitutional language reads: “The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States.”
1. The first point to be clear about is that this language means “The Congress shall have power to lay and collect taxes . . . in order to pay the debts and provide for the common defense and general welfare of the United States.” Paying the debts and providing for the common defense and general welfare are the purposes for which the taxes are collected.
The alternative interpretation would read the language as saying “The Congress shall have power to lay and collect taxes . . . and power to pay the debts and provide for the common defense and general welfare of the United States.” Under this interpretation, there are two separate powers: the power to tax and the power to provide for the common defense and general welfare. This reading seems far worse for a variety of reasons too numerous to go into here. To just mention one, it would be odd to list the extremely broad power of providing for the common defense and general welfare after the power to lay and collect taxes (dividing them with a comma rather than a more grammatically correct “and” or semicolon) and then to return at the end of the sentence to address the taxing power again by requiring all duties to be uniform throughout the United States.
2. So let’s assume the language means “in order to provide for the general welfare.” Once we do that, though, a problem arises. The power to spend for the general welfare (beyond the enumerated powers) is an enormous power. It authorizes Social Security, Medicare, and Medicaid, to name just a few programs. It would be odd to convey that power by describing it (as this reading does) as the purpose of the taxing power. Rather, such a large power should be listed as an independent power (but as we have just seen, the language cannot be read in that way).
The language here says the government can tax in order to spend for the general welfare. The constitution usually provides for significant powers by listing them separately such as the power to declare war, to regulate interstate commerce, to tax, etc. Thus, one needs an explanation for why such a significant power would be phrased merely as the purpose of the taxing power. (In my next post, I explain why the language takes the form of a purpose, using an explanation that supports the Madisonian interpretation. The Hamiltonian interpretation has, as far as I can see, no explanation for why the language takes the form of a purpose.)
3. Another problem with the Hamiltonian interpretation is that it requires us to believe that the Framers would have conveyed an enormous power like spending for the general welfare while limiting that power only with an extremely vague term like “general welfare.” They understood that general welfare was difficult to define. If one looks at Congress’s other powers, they are not limited by such vague terms. Even though the Framers use general terms that certainly require interpretation, like commerce among the states, the terms they use are uniformly less vague and clearer than “spending for the general welfare.” This vagueness, combined with the fact that the alleged power is in the form of a purpose, make it extremely unlikely that the Constitution is conveying the Hamiltonian spending power.
These are main problems with the Hamiltonian interpretation. In my next post, I defend the Madisonian interpretation.