Me: Mike, would you please explain why Congress feels like it can use the "general welfare" clause of the Constitution to write so much legislation that is blatantly unconstitutional? In addition, what can American citizens do to rein back Congress and get things back on the track the founding fathers laid out for us?
Mike: Sorry for the delay; the last few days have kept me quite busy. Your question is an excellent one, and I am pleased to offer an answer.
The phrase "general welfare" appears twice in the Constitution -- first in the preamble (which grants no authority to Congress, but simply states the broad objectives underlying the Constitution), and second in Article I, Section 8, Clause 1 (the "Spending Clause"). Both James Madison and Alexander Hamilton viewed the phrase as a limitation on the spending power, one that was intended to make clear that Congress could spend money only on things that would benefit the nation as a whole (as opposed to benefitting only a discrete, localized interest). Madison believed that, in order to "promote the general welfare" under the Spending Clause, a federal expenditure had to be made in furtherance of one of the other powers enumerated in Article I, Section 8. In other words, Madison believed that the Spending Clause required Congress to do more than simply conclude that the country would benefit in some way from an expenditure of federal funds; the expenditure had to be tied to a substantive power granted to Congress. Although Hamilton adopted a broader view, he nonetheless believed that it would be unconstitutional for Congress to spend money on things that would benefit only certain people or certain parts of the country.
In 1936, the Supreme Court -- in a case called United States v. Butler -- identified the distinction between Madison's view and Hamilton's, and sided with Hamilton (without much explanation). I think this was unfortunate because I regard Madison's view as far more consistent with the all-important concept that the federal government was meant to have limited power. Once you empower Congress to spend money on anything that it believes will be good for the country in some way, you open the door to unfettered expansion of the federal government. And although there is at least a theoretical limit to what Hamilton's approach will tolerate -- a limit transgressed by much of the irresponsible porkbarrel spending that is common today -- that limit is often difficult to identify, and has not been enforced by the courts.
What, then, is the solution? We need to start by reminding members of Congress that, even under the broader, Hamiltonian reading of the Spending Clause, many of today's federal expenditures are constitutionally suspect. We also need to reopen and re-invigorate the debate between Madison's view and Hamilton's, and explain why Madison had the right approach. For a variety of reasons, we can't expect the courts to take care of this problem (at least not anytime soon); we need to have this debate within the political branches of government. Anyone who rejects Madison's view and otherwise refuses to recognize some meaningful limitation on the federal spending power should be held accountable for ignoring what many consider the single most important feature of the Constitution -- the principle of enumerated powers -- and released with a vote of thanks.
That strategy, of course, will work only if enough voters throughout the country (a) become concerned about the size, cost, and reach of the federal government, (b) believe that complying with core constitutional principles is a noble end in and of itself, (c) learn enough about the text and history of the Constitution to realize that many of those principles are being ignored by Congress, and (d) use their voting power to install candidates willing to stand up for those principles. I don't pretend that this will be easy. That said, I can't -- and won't -- pretend that it doesn't need to happen.
Me: Thank you so much for responding to my question, Mike. That clears it up completely. And I also side with Madison, and you, in this matter.
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