From: cwinkler@oregon.uoregon.edu (Celia Winkler)
Subject: Re: Social Spending Constitutional?
News-Software: VAX/VMS VNEWS 1.41    
Organization: University of Oregon
Date: 17 Apr 1992 09:27 PDT  

In article <V5p+Gk=@engin.umich.edu>, jwh@citi.umich.edu writes...
>In article <16APR199218230666@oregon.uoregon.edu>, cwinkler@oregon.uoregon.edu (Celia Winkler) writes:
>|> In article <35144@uflorida.cis.ufl.edu>, daj@reef.cis.ufl.edu (David A. Johns) writes...
>|> >In article <1992Apr12.091843.2210@agora.uucp> robart@agora.uucp (Robert Barton) writes:
>|> > 
>|> ># >>   Congress shall have the power:
>|> ># >>      1.  To collect taxes "to pay the debts and provide for the common
>|> ># >>              defense and general welfare of the United States".
>|> ># >       .
>|> ># >       .
>|> ># >
>|> ># >       How doesn't urban infrastructure, job training, drug rehab, etc,.
>|> ># >       fit under the 'general wlefare [sic] of the United States?'
>|> >#
>|> >#   Whether it "fits" or not is irrelevant, since Congress is not
>|> ># given power in those specific areas.
>|> > 
>|> >Ah, I get it.  "General welfare" has some mysterious meaning that
>|> >excludes things that most of us think of as general welfare.  OK.
>|> 
>|> This was settled a LONG TIME ago, and unless Mr. Barton wishes to overturn
>|> 50 years of S.Ct. decisions...  In dicta, U.S. v. Butler 297 US 1 (1936);
>|> Social Security--Helvering v. Davis 301 US 619 (1937).
>|> 
> 
>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.

>|> 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,

	The Madisonian theory, rejecting the natural meaning, and
	treating the clause as an introduction to the subsequent
	enumeration of Congressional powers ... violates the
	basic principle of constitutional construction...  This
	would transform a great independent power into a mere
	incident of other powers.

	The circumstances surrounding the adoption of the clause
	and the opinions of most of those who participated in the
	adoption and early execution of the Constitution support
	the Hamiltonian view.

	The clause was adopted along with that relating to the
	payment of debts, after a prolonged discussion, not only
	of the Revolutionary debts, but also of the power of 
	Congress, as against that of the States, in regard to 
	matters of general interest.

	Discussion in the ratifying conventions indicates clearly
	an almost unanimous view that the clause was not limited
	by the enumerated powers.

	There would seem no doubt that President Washington agreed
	with Hamilton and Monroe...  And it is clear that John Quincy
	Adams was of the same opinion ... as was ...(list of folks
	who agreed).  Apparently, Jefferson likewise shared this view,
	although his opinion on the Bank of the United States has been 
	quoted both as supporting the Hamiltonian and the Madisonian
	view.

	...

	It is not suggested that the public money may be expended by
	Congress for any other than national purposes, or for any other 
	uses than those of the Nation.  But the question of what is a
	national use, is, in the first instance, purely a question of
	governmental policy, of which Congress is to judge.

	US v. Butler (1936) 297 US 1, 16-19 [citations omitted].

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.

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.

This may seem to be a cynical approach, but it isn't, not really.
It is, in a way, a celebration of the struggle, homage to those
who died in the battle over rights--the unnamed heros of Haymarket
Square and the Civil Rights movement, among others.  The Constitution 
sets up both the framework and provides some of the playing pieces.  
But it doesn't accomplish the task of thrashing out the meaning of
citizenships for us--we do that.  It doesn't relieve us of the 
obligation of redefining, on a daily basis, "government."
That is up to us.

cw
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