The Spending Power is Madisonian, not Hamiltonian: Part II (A Defense of the Madisonian Interpretation)

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 20, 2012 at 00:57:07 am


As is said, let us construe the document by its entirety.

As enacted, were the powers of taxation and the manner of its execution not limited by the first paragraph of Art I; Section 8?

Could a tax (not a "fine" or penalty) have been levied for the purpose of punishment; to limit access to free association; to encourage mud-wrestling; or for anything other than the classifications specified?

Here is a document framed with the obvious objective of limiting the uses (and means to be employed for those uses) of the mechanism of the government established by the document.

Why not accept that limiting function for those words?

read full comment
Image of Richard Schweitzer
Richard Schweitzer
on June 21, 2012 at 00:26:22 am

Take off the present-day ConstLaw blinders you are wearing, as they are keeping you from seeing the original public understanding of "regulations of commerce." Also, "original meaning" originalism (what did the words originally mean?) is as worthless and discredited as "original intent" originalism (what did the Framers intent to do?). What's more important is "original public understanding" originalism (i.e., from the evidence left by those who ratified the Constitution, how did they objectively understand what they were assenting to; what arguments against the constitution were raised, and how were those arguments put to rest by the Constitution's proponents in convention, where understanding the Constitution mattered most?)

As I explained in my comment on your last entry, the GWC is best and most easily understood as a constraint on the taxing power. The Taxing Clause, which confers zero spending power, can be understood as saying "Congress may tax to (i) pay the debts, (ii) provide for the common defense, or (iii) provide for the general welfare, of the United States." Congress may tax for these purposes.

It's pretty clear that, coming out of the ratification conventions (who Madison himself said are the expositors or what the Constitution means, to be preferred even over the evidence coming out of the Philadelphia Convention), it was understood that Congress would be able to regulate foreign commerce and use its taxing power to support that regulation. It is also evident that this role was accepted by the initial Congresses as they passed mercantile [read: protectionist] duties and imposts, to not only meet the expenses of providing customs and port services, but also to raise revenues beyond those costs in order to fund government and protect domestic industries.

If item (iii) above is stricken from the language, such imposts and duties to raise revenue beyond the expenses necessary to provide customs and port services disappear. It's that marginal analysis of the language that has the most power in determining what the effect of the language is (ceteris paribus; all else equal, how does our understanding of the document as a whole change when this one bit of language is not present?).

Further, in resorting to the interpretation offered in the Bailey case from 130 years after the ratification, you are confusing the issue. Under original public understanding, Bailey would have been viewed as a case about the improper use of the federal taxing power to regulate local labor contracts, a item clearly viewed to be wholly within the power of the states, as clearly presumed by the Contracts Clause (if the states can't interfere with contracts after the fact, that necessarily assumes they have reserved the power over contracts, but are limited thereby only to cases before the fact). That is, Bailey would not have even been viewed as a case about commerce. As such, the power to use taxation to regulate commerce would not have extended to that case. Moreover, with taxing to regulate local activity out, so too is taxing to regulate intrastate trade, since that would infringe the reserved police powers of the state. Thus, Congress would only be left to attempt regulating that state's internal commerce by burdening the items those state exports with taxes, except that's already proscribed in the Constitution!

More simply: the fact of divided sovereignty makes the federal power to regulate interstate commerce much diminished and limited in scope when held up against the federal power to regulate foreign commerce. It boggles me why the assumption that the powers are somehow equal is so readily accepted as to be taken for granted.

Until you drop your own modern hang-ups of what the law is today and climb inside the mind of an objective observer in 1788-89, you are going to keep having trouble understanding how what I'm saying not only confirms Madison's stance, but properly explains his views. I also recommend you brush up on your knowledge base regarding economic systems. In your very first post in this string (the book review), you confused free-market thought with Hamiltonian mercantilism, which are inherently not the same sort of economic systems. If you can't understand how they differ, you won't understand what I'm explaining here.

read full comment
Image of J.D.
on June 21, 2012 at 12:43:04 pm

If the Convention had gone upstate to cooler regions, we may have gotten a better, i.e.. more clearly written document. Also, with no revisions allowed then or later, these issues of meaning will and are of an endless sort of further folly and a waste of time, because each who decides when required, a judge, will do so differently than the next judge, which makes for an unreliable way to go about - thus nullifying the reason for a written Constitution.

But to redo the Constitution would be an equal folly, for we still fight and bicker amongst ourselves following strict party lines - party lines which allow only two choices, and gentlemen, two choices are never wise enough, especially for this basic and fundamental document. At minimum a disinterested third party should be employed to question the other two.

And to follow up the above, today's free-market notion was never a founding principle. Today's free-market push is rather un-American, because it is done so without responsibility to counter it, i.e. regulations. Unfettered activity is Anarchy. Free-markets do not bring the Utopia desired.

read full comment
Image of Eric Hodgdon
Eric Hodgdon
on June 22, 2012 at 20:33:40 pm

Really, Eric?

Just because mercantilism was the dominant mode of economic thought at the time of the founding doesn't make a free-market system un-American.

By that logic, being anti-slavery is un-American, as slavery was a dominant view of regarding what could be considered property at the time of the founding.

read full comment
Image of J.D.

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.