From: jwh@citi.umich.edu (Jim Howe)
Subject: Re: Social Spending Constitutional?
Date: Fri, 17 Apr 92 14:36:09 EDT
Organization: IFS Project, University of Michigan
Reply-To: jwh@citi.umich.edu

In article <17APR199209275250@oregon.uoregon.edu>, cwinkler@oregon.uoregon.edu (Celia Winkler) writes:
|> In article <V5p+Gk=@engin.umich.edu>, jwh@citi.umich.edu writes...
|> >[discussion of the meaning of 'general welfare' deleted and SC
|> > decisions deleted]
|> > 
|> >Given the nature of some of these decisions this wouldn't be a bad
|> >idea.  The Constitution is basically a toothless document when it
|> >comes to controlling government, thanks to many of those decisions.
|> > 
|> Well, I'd agree that there are definitely some problems, but I'd guess we
|> wouldn't agree about what those problems are!!  My pet peeve is the
|> "burdening" language of the abortion funding cases.  These say that
|> the decision to limit Medicaid funding to medical expenses other than
|> those guaranteed as a fundamental right does not *burden* the exercise
|> of that right.  But that's another thread.

My pet peeve would be the existence of Medicaid in the first place.  But
that's another thread.

|> 
|> >|> Basically, these cases say that "general welfare" is anything that Congress 
|> >|> says it is.  (But see discussions on arbitrariness, burdening fundamental 
|> >|> rights, and invidious classifications.)
|> >|> 
|> > 
|> >A perfect case in point.  This is clearly not what was intended.  The
|> >founders were very specific in detailing the powers granted to Congress.
|>  ******** --> which founders?
|> 
|> >If they meant the clause to be interpreted in the way it currently
|> >is there would have been no point in spelling out other powers.  In
|> >fact, they could have stopped with the Preamble and saved themselves
|> >a great deal of time.  Check out Madison's perspective on this
|> >issue in Federalist 41.          ******* 
|> 
|> But, what about Hamilton?  From US v. Butler,
|>
|>    [text from US v. Butler deleted]
|>

What about Hamilton?  The section you reference is not quotes
of Hamilton but the SC interpretation of the Hamiltonian view.
Where can I read the views of Hamilton directly?  Does
Hamilton present a relatively concise argument which disputes
the argument put forth by Madison?
|> 
|> I suppose one could argue that the "founders" were so narrow minded that
|> they did not believe that there would ever be anything more that a
|> federal government should do than were set forth in the "enumerated
|> powers."  I would prefer the interpretation that they foresaw that
|> there would always be a tension between the powers of the feds, the
|> states, and individuals.  There was a tension back then; I don't
|> suppose anyone imagined that the tension would miraculously vanish
|> as a result of the ratification of the Constitution.
|> 

I don't doubt that they foresaw the 'tension' you mention.  It seems
to me that is why the Constitution is subject to amendments.  I still
think that Madison's argument makes the most sense.  Why would you
list specific powers that would clearly be included in the more
general power?  Why list specific powers if one phrase essentially
grants virtually unlimited powers?

|> My own particular belief is that the meaning is constantly changing,
|> according to who has power and who's in the game at any particular
|> moment.  We can play "original intent" and "natural law" and the
|> other interpretive games until the cows come home, but in the end
|> we are simply trying to forward an interpretation that will benefit
|> our particular material interests.  The Constitution and the Amendments
|> (particularly the 5th and 14th) are excellent playing pieces.  Very
|> nicely crafted, susceptible to all kinds of arguments.  But that's
|> all they are.  Words that can be molded and crafted to fit ideas
|> that may have a very material impact, and whose meaning is impacted
|> by our material interests.
|> 

I don't subscribe to the theory that we should attempt to 'interpret'
the Constitution according to todays 'values'.  Instead of twisting
the words to mean something that was not originally meant, we should
amend the Constitution to fit todays world.  I will acknowledge that
passing an ammendment is difficult, but it should be.  Changing the powers
granted to the government should be a difficult thing to do.  It
prevents a tyrrany of the majority.  I don't like the idea that
judges can alter governmental powers simply by reinterpreting words.
It gives them far more power than they should have.


James W. Howe                  internet: jwh@citi.umich.edu
University of Michigan             uucp: uunet!mailrus!citi.umich.edu!jwh
Ann Arbor, MI   48103-4943