Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
In my first post on the Spending Power, I identified problems with the Hamilton interpretation. In this post, I defend the Madisonian interpretation.
4. If the Hamiltonian interpretation is mistaken, how can we reach the Madisonian interpretation? Michael Greve makes the common argument that the Madisonian interpretation has a serious redundancy. The language “to pay the debts and provide for the common defense and general welfare of the United States” was not needed to allow Congress to spend for the enumerated powers. Presumably, spending for a particular enumerated power was pretty clearly allowed under that power and the Necessary and Proper Clause.
This argument has been used against the Madisonian interpretation for a long time. But even if the Madisonian interpretation did involve a redundancy, I still think it would be the best interpretation. The problems I mentioned in my first post seem to me much worse (even though I, unlike some others, regard redundancy as a relatively serious cost of an interpretation). But I think defenders of the Madisonian interpretation can do better than swallowing the cost of the redundancy.
5. There are two significant ways that the Madisonian interpretation can be improved. First, we can show that this language is not redundant. Second, we can link the language “to pay the debts and provide for the common defense and general welfare of the United States” to the enumerated powers. Let me start with the second way.
One might wonder why the Framers would not have said, Congress can tax in order to fund the government’s execution of the powers conferred on it by this Constitution. That might have seemed clearer, but the language they used also conveyed the same meaning. To begin with, the enumerated powers are readily described as powers that “provide for the common defense and general welfare of the United States.” Local (nongeneral) powers, for example, were left to the states. The addition of paying the debts seems a bit specific (under any reading) but it is comfortably part of the powers of Congress.
Moreover, the Articles of Confederation had already used a similar phrase to refer to the enumerated powers of the federal government. Section 8 of the Articles provides that “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 assembled, shall be defrayed out of a common treasury.” It seems pretty clear that the Articles here is saying that all money that is spent pursuant to an enumerated power must come out of a common treasury. And it is using common defense and general welfare to refer to those powers. By contrast, the Hamiltonian interpretation would suggest that the Congress under the Articles had the power to spend for the general welfare, which, given the sparse powers conferred under the Articles, seems exceedingly unlikely.
6. Finally, the general welfare language need not be understood as redundant. Rather, we can make full sense of the language – its reference to the enumerated powers and its inclusion as the purpose of the tax powers – in the following way. This language was added to make clear that the tax power needed to be used to raise revenue. In other words, the purpose of the taxing power was to raise revenue to fund the government. It was not to use that power for regulatory purposes. That explains why the language took the form of the purpose of the tax powers.
One potential problem with conferring the taxing power is that it could be used for regulatory purposes. For example, after the Supreme Court held that Congress did not have the power to prohibit child labor, Congress sought to tax such labor as a means not of raising revenue, but to prohibit or discourage it. The Supreme Court saw through this ruse and struck down the taxing power. Moreover, it is necessary to prohibit such “regulatory taxes” if provisions like the interstate requirement of the Commerce Clause are not to be avoided.
The language specifying the purpose of the taxing power confirms the correctness of this interpretation. The language makes clear that the taxing power is to be used to fund the enumerated powers – to provide for the common defense and general welfare – and not to regulate.
Thus, the Madisonian interpretation of the spending power does not have a redundancy problem. It reads the purpose oriented language of the taxing power as having a clear and important effect.