Three months ago — while anticipating that there would be five judges on the Supreme Court who would figure out a way to uphold Obamacare despite the weakness of the Commerce Clause argument for the “individual mandate” — I argued on the Corner that the root of our problem is the General Welfare Clause in the preamble of the Constitution’s Article I, Section 8. That is, since the poorly reasoned decision of the New Deal–era Supreme Court in United States v. Butler (with the justices laboring under FDR’s court-packing threat), the Supreme Court has ceased to recognize any limits to Congress’s power to tax and spend on what it unilaterally decides is in the public interest.
It does not have to be this way. Indeed, it was not this way for the first century-plus of the nation’s existence.
As my friend John Eastman of Chapman Law School outlined in a brilliant essay for the Heritage Foundation, there are three visions of what “general welfare” means in the Constitution. First is the Hamiltonian view, with which we are now saddled.
Alexander Hamilton contended that Congress’s taxing authority is “plenary, and indefinite,” and that “the objects to which it may be appropriated [i.e., the general welfare] are no less comprehensive.” He successfully persuaded George Washington to adopt this construction during the first presidential administration. Yet it was widely rejected. In fact, the Framers of the Constitution denied a Hamiltonian proposal to include a provision authorizing the federal government to spend public funds on internal improvements. Most presidential administrations, moreover, recognized that Hamilton’s construction of the general welfare could, as James K. Polk’s crystal ball warned, “absorb the revenues of the country, and plunge the government into a hopeless indebtedness.”
Second is the position that is generally credited to James Madison but was shared by Thomas Jefferson — the one I believe is correct. It holds that the preamble’s General Welfare Clause, right before the Constitution’s exacting enumeration of Congress’s powers, merely makes clear that Congress has the authority to raise revenue and spend in furtherance of those specified powers. Those powers include many things: declaring war, raising armed forces, regulating interstate and international commerce, establishing post offices and the lower federal courts, etc. But they do not include welfare-state programs.
Don’t be cowed by shrieking from the Left. The Constitution, of course, does not say we cannot have Social Security, health care, education, and other such programs that Congress is given no power to create. It creates a federalist system of dual sovereignty. Welfare programs can legitimately be created only by state and local governments. It is at that level that the people most intimately familiar with the local culture and conditions can best determine what they desire and what they are willing to pay in order to have it — without those desires and costs’ being imposed on other states that have different notions of what government may demand of the citizen.
If anything should be patent by now, as we rapidly sink trillions deeper into debt’s death spiral, it is this: If Congress’s tax-and-spend authority is not restricted to the specific grants of power enumerated in Article 1, Section 8 — a restriction confirmed by the Tenth Amendment’s guarantee that powers not granted by the Constitution to the national government are retained by the states and the people — the Hamiltonian gloss on general welfare both bankrupts the country and destroys state sovereignty.
As is seemingly always the case, there is also a “third way” — a “moderate” compromise between the Hamiltonian and Madisonian “extremes.” This is the Monroe position. President James Monroe understood the existential danger of Hamilton’s no-limits approach. Still, as John Eastman explains, he was unwilling to adopt Madison’s strict limitations. His middle position was that the concept of “general welfare” did not restrict Congress to section 8’s enumerated powers, but it did contain its own restriction — the word general.
Spending, he inferred, had to be for the general welfare: It could not be a redistribution of wealth strictly for the benefit of local or regional interests; it had to accomplish some legitimate national interest. To be more concrete, Eastman recounts that one early Congress declined to fund the dredging of the Savannah River but approved an appropriation for a lighthouse at the entrance of the Chesapeake Bay: The latter was valid because it benefited coastal trade for the nation, the former invalid because it would solely benefit Georgia and South Carolina.
The problem with the Monroe approach is easy to spot and has, alas, been confirmed by history: “General welfare” is a hopelessly amorphous, subjective term. It inexorably devolves into federal gluttony if not guided by explicit limitations, which is to say, if the political branches are left to their own devices and allowed to contort the idea of general welfare based on the exigencies of the times — a “crisis” being a terrible thing for big-government enthusiasts to waste. This, no doubt, is why the resourceful Hamilton himself eventually embraced the Monroe approach, just as today’s progressive Democrats shrewdly make common cause with moderate Republicans to expand unsustainable government programs and explode government debt.
In the 1936 Butler case, the Supreme Court purported to adopt the Monroe middle way, although it relied on Hamilton as its principal guide. That was prescient, because what we’ve ended up with really is Hamilton’s boundless behemoth. The Court has left it to Congress itself to decide the parameters and needs of the “general welfare.” This is odd. The justices have not hesitated to prescribe objective metrics for assessing the legitimacy of such congressional exercises as the imposition of conditions on states receiving federal funds, and even — as we saw in the Obamacare ruling — the regulation of interstate commerce. Yet, when it comes to the general welfare, on deciding what is a proper federal expenditure, Congress has been left on its own. Today’s profligate spending and cavernous debt, to be followed in short order by tomorrow’sTaxmageddon, is the resulting nightmare come true.
As Professor Eastman notes, even Justice Sandra Day O’Connor — not exactly a limited-government scold — recognized that “if the spending power is to be limited only by Congress’ notion of the general welfare, the reality . . . is that the Spending Clause gives ‘power to the Congress . . . to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.’ This . . . was not the Framers’ plan and it is not the meaning of the Spending Clause.” Ironically, she was contending (in her South Dakota v. Dole dissent) that this was not what the Butler Court intended. It is, alas, what the Butler Court wrought.
The decision to uphold Obamacare was a shameful subordination of good constitutional law to Chief Justice John Roberts’s worries about the vulnerabilities of the Court and his legacy to the Left’s otherwise certain tirade. Nevertheless, the Court can hardly be blamed for omitting serious consideration of potential limits on Congress’s spending power. Put aside that Obamacare was legislated as an exercise of Commerce Clause power and substantially litigated as a Commerce Clause case — before 10:15 Thursday morning, outside a stray left-leaning commentator or two who wanted the law upheld regardless of how it had been presented to the public, no one but Roberts seems to have seen it as a tax case. The point is that, for three-quarters of a century, no limits on “general welfare” have been recognized, so no weighty arguments for narrowing Congress’s tax-and-spend authority have been offered.
Thursday was not the end of the Obamacare challenges. In his sleight-of-hand opinion, Roberts was against the tax before he was for it: Prior to implausibly upholding the “individual mandate” as a tax for constitutional purposes (so he could sustain the law), he held that it was not a tax for purposes of the Anti-Injunction Act. Under that act, taxpayers who claim to be unconstitutionally harmed by Congress’s tax-and-spend forays must wait until the taxes are collected before suing. In Obamacare, that starts to happen in 2014 (i.e., after the 2012 elections). This will provoke a raft of new challenges and, perhaps, an opportunity to revisit the Court’s General Welfare Clause jurisprudence and its reluctance to second-guess the bipartisan ruling-class consensus that nothing is outside Leviathan’s domain.
But why wait for litigation?
The biggest mistake Republicans made with the deeply unpopular Obamacare law — besides funding it even as they were promising to repeal it — was to delegate the heavy lifting of undoing it to the states and their lawyers. Obamacare has always needed a political rejection, not a legal one. So does the whole Obama agenda, which suffers no impediments to federal intrusions.
This is the agenda that gave birth to the Tea Party and dramatically shifted the House to Republican control in 2010. That shift has been a profound disappointment: Republican leadership is hospitable to expansive federal power propped up by deficit spending (see, e.g., the debt-ridden transportation bill to which the GOP agreed while every American eye was watching the Supreme Court). But the feckless leadership is not the future; the Tea Party and limited government are. They have to be, for we are fast running out of other people’s money — of other generations’ money.
The Tea Party and the conservative grassroots have not fallen in love with Mitt Romney. They suspect, based on his record, that he looks favorably on government-controlled health care and is cut from the same cloth as GOP leadership. Romney, however, has the advantage of having lived his political life outside Washington. He is not tainted by the Beltway establishment legacy — not yet, anyway.
In the wake of the Obamacare ruling, the 2012 election is now teed up as a make-or-break decision over an economy teetering on terminal paralysis, incalculable debt, ruinous unemployment, and government-rationed health care. The general-welfare issue gives Romney a golden opportunity to separate himself and galvanize the core of the country that dreads a second Obama term and has had it with Washington.
Don’t wait for the courts, Mitt. Propose a plan that defines the general welfare with clear, objective limits on Congress’s spending power. Make it a plan that restores the states as supreme when it comes to the health and welfare of their citizens. Make it a plan that places the Obamacare monstrosity beyond federal authority, a plan that reasonably, but definitively, winds down and ends federal entitlement programs that are going broke anyway. Let the states craft their own safety nets. As a certain former Bay State governor observed during the GOP debates, if that means Massachusetts and Texas have different ideas about the welfare state, so be it. As long as Big Government states are willing to finance their own extravagance, without passing the costs along to states whose citizens put their faith in self-reliance, that is what federalism is all about.
Now that would be a campaign that promoted the general welfare. And it would win.
Andrew C. McCarthy is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.