Evening star., 1936-01-07

clause, which, for the purpose OF the
present case. may be put aside as
irrelevant.
First Clause Is Claimed
for Law.
The clause thought to authorize the
legislation-the first-cnnfers upon the
Congress power ito lay and collect
taxes, duties, imposts and excises, to
pay the debts and provide for the
common defense and general welfare
Of the United States ." It is
not contended that this provision
grants power to regulate agricultural
production upon the theory that such
legislation would promote the general
welfare. The Government comedies
that the phrase ito provide for the
general welfare" qualities the power
ito lay and collect taxes"
The view that the clause grants
power to provide for the general well
fare. independently of the taxing
power. has never been authoritatively
accepted. Mr.. Justice Story points
out that il it were adopted lit is OBJ
vious that under color of the generality
of the words, to provide for the COM
mon defense and general welfare tie
Government of the United States is in
reality. Government of general and
unlimited powers, notwithstanding the
subsequent enumeration of specific
powers" The true construction un-
doubtedly is that the only thing
granted is the power to tax for the
purpose Of providing funds for pay
ment of the Nations debts and max
ing provision for the general welfare
Nevertheless, the Government asserts
that warrant is found in this clause
for the adoption of the agricultural
adjustment act. The argument is that
Congress may appropriate and author
ize the spending of moneys for the
general welfare; that the phrase
should be literally construed to cover
conducive to national vel
fare; that decision as to what will pro-
mote such welfare rests with Congress
alone. and the courts may not review
its determination, and finally that ths
under attack was IN
fact for the general welfare of the
United States.
The Congress is expressly en-
powered to lay taxes to provide for
the general welfare. Funds in the
Treasury as a result Of taxation may
be expended only through appropri-
alton. tArt /, Sec. 9, CT. - They
can never accomplish the objects for
which they were collected unless the
power to appropriate is as broad as
the power to tax The necessary i'm
plication from the terms Of the grant
Is that the public funds may be ap-
"to provide for the gen.
eral welfare of the United States"
These words cannot be meaningless,
else they would not have been used.
The conclusion must be that they
were intended to limit and define the
granted power to raise and to expend
How shall they be construed
to effectuate the intent of the in
strument?
Differences Of Opinion
On Interpretation.
Since the foundation OF the Ma
ton sharp differences of op Mon have
persisted as to the true interpreta-
ton of the phrase. Madison asserted
it amounted to more than a reference
to the other powers enumerated in
the subsequent clauses Of the same
section: that. as the United States is
a government of limited and enumer-
ated powers, the grant of power to
tax and spend for the general ma
tional welfare must be confined to
the enumerated legislative fields COM
mitted to the Congress. In this view
the phrase is mere tautology. for tax
alton and appropriation are or may
be necessary incidents of the exercise
of any of the enumerated legislative
powers.
Hamilton, on the other hand. MAIN
tanned the clause confers q power sep
arate and distinct from those later
enumerated, is not restricted in mean
ing by the grant of them, and Con-
gress, consequently. has substantive
power to tax and to appropriate, lin
tied only by the requirement that 1t
shall be exercised to provide for the
general welfare of the United States.
Each contention has had the support
of those whose views are entitled to
weight. This court has noticed the
question, but has never found it neces-
sary to decide which is the true con-
struction. Mr.. Justice Story, in his
commentaries, espouses the Hamll-
tonian position. We shall not review
the writings of public men and COM
or discuss the legislative
practice. Study of all these leads us
to conclude that the reading advo-
Gated by Mr.. Justice Story is the cor
rect one. While. therefore, the power
to tax is not unlimited, its confines
are set in the clause which confers it
and not in those of section 8, which
bestow and define the legislative pow
CLIO "a tllC IL TcSultS LIldG
the power of Congress to authorize
expenditure of public moneys for pub
lie purposes is not limited by the di-
rect grants of the legislative power
found in the Constitution.
But the adoption of the broader
construction leaves the power to spend
subject to limitations.
Government Of Special,
Powers.
As Story says:
"The Constitution was, from its very
origin, contemplated to be the frame
of a national government, of special
and enumerated powers, and not of
general and unlimited powers"
Again he says:
"A power to lay taxes for the COM
mon defense and general welfare Of
the United States is not in common
sense a general power. 1t is limited
to those objects. It cannot consti-
tutionally transcend them"
That the qualifying phrase must oe
given effect, all advocates of broad
construction admit. Hamilton, in his
well-known report on manufactures,
states that the purpose must be gen.