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Someone's Never Heard of the Constitution's "General Welfare" Clause?:

The U.S. Constitution gives Congress the power to tax and spend only for the "general welfare." The Supreme Court has essentially left it up to Congress to determine what constitutes the general welfare. ["The line must still be drawn between one welfare and another, between particular and general . . . . The discretion, however, is not confided to the courts. The discretion belongs to Congress."] Congress doesn't take this responsibility very seriously, if its members even recognize it exists, as evidenced by Senate Majority Leader Harry Reid's comment: "The Founding Fathers would be cringing to hear people talking about eliminating earmarks."

pmorem (mail):
It's also worth noting that money may not be removed from the Treasury except by law. "Committee report" earmarks seem to forget that.
3.19.2008 4:03pm
Brian G (mail) (www):
I thought for sure that was an Onion quote.

Reid might want to bone up on the founder fathers. For example, James Madison:

"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents."

Somehow, I doubt Madison, and many of the others who felt exactly like him, would be "cringing" at the thought of the people complaining about government giveaways.
3.19.2008 4:13pm
Brian G (mail) (www):
Let me add this too. There are a ton of liberals who would argue that Madison was not interpreting the Constitution properly. However, since he wrote the thing, I would say he knows a little about its meaning. Maybe not as good as, say, Stephen Reinhardt or Ruth Bader Ginsburg, but pretty good nonetheless.
3.19.2008 4:16pm
George Weiss (mail) (www):
pmorem

new easy way around that now-just have the statue text refer to whatever is in the report....weeeeeeeee legislating is fun
3.19.2008 4:23pm
frankcross (mail):
I think this misses the point. The point is that federal money will be spent on these local projects. Roads, for example. Whether this violates the general welfare clause is a debatable issue, but it will be spent, earmarks or not. Reid is saying that Congress should dictate where it is spent, the alternative is the President. Getting rid of earmarks simply shifts the discretion to the President. Reid seems to have an entirely reasonable position that having Congress direct this spending is more originalist than leaving it to the President.
3.19.2008 5:12pm
Andrew J. Lazarus (mail):
I think the Internal Improvements argument happened long ago and Reid's side won.
3.19.2008 5:13pm
MDJD2B (mail):
Any expenditure for the general welfare will necessarily also benefit some parties particularly.

If the nation needs naval vessels, the choice of shipyard will reward onelocality more than others. If we fund university research, one university will get a grant that another one does not; the scientific results presumably are what contributes to the general welfare. The routing of any government-built highway will benefit some cities and harm others.

Prof. Bernstein may be able to identify a test to distinguish between particular expenses that serve the general welfare from pure pork, but I can't. I wish I could.

Should the courts attempt this?
3.19.2008 5:32pm
George Weiss (mail) (www):
frankcross

not necessarily. its true that often earmarks simply take a certain states' already appropriated highway funds (per your example) and dictate that they be spent on x project. This is actually what happened with the famous bridge to nowhere-which many people don't understand-it didn't give Alaska any new money-its just squandered away what they already had.

(and yes, then alternative would be the exec deciding it through the already in place statutory criteria-which usually gives the states the right to spend it wherever they want-as long as they meet some basic criteria).

but often, earmarks simply appropriate funds from the general fund that could be used elsewhere-or not spent at all.
3.19.2008 5:37pm
common sense (www):
frankcross- Why will the president spend it? Don't tax to collect that money, and let local municipalities deal with roads. At least local roads, and not interstates.
3.19.2008 5:38pm
alkali (mail):
I think the relevant historical milestone is the codfish debate of February 1792. The issue was a subsidy for cod fishermen. Madison objected on the ground that it wasn't for the general welfare. Elbridge Gerry argued that if expending money on the defense of the frontier states against native American tribes counted as general welfare, promotion of commerce on the eastern seaboard should also count. In that respect, Gerry's view was in accord with Alexander Hamilton's Report on Manufactures of December 1791, which essentially suggested an industrial policy based on subsidies to manufacturers. So Madison vs. Hamilton, pick your Founder.
3.19.2008 5:54pm
Simon Dodd (mail) (www):
Congress doesn't take this responsibility very seriously
What do you mean "this"? Is there a Constitutional responsibility limiting Congress' power that Congress does take seriously?
3.19.2008 6:33pm
Choy Mu (mail):
Hmmmm ... the relatively honest guy or the lying, power-munging, check-forging bastard ... I'll pick Madison.
3.19.2008 6:46pm
Tony Tutins (mail):
Does that article really mean that say, Byrd did not shovel pork into West Virginia until the 1980s? What was he doing the first quarter-century he was in office?
3.19.2008 7:05pm
frankcross (mail):
commonsense, that's possible but

(a) there is no chance it will happen and

(b) it would be a terrible idea, the federally funded interstate highway program was an enormous boon to this nation, economically and otherwise.
3.19.2008 7:53pm
Bob from Ohio (mail):
A question for the liberals here. Are you satisfied with Reid? Or do you want him replaced next year?

He seems worse than Frist who frankly stunk as a leader.
3.19.2008 8:01pm
FWB (mail):
The quote "general Welfare" is incomplete. It is "the general Welfare of the United States of America", a body-politic distinct and separate from 1) the individual States and 2) the People. The general Welfare spoken of is that general Welfare that is applicable to the entire Union and NOT to local pork. If Congress had held its responsiblility close, we would not need the excessive taxes we now have, the money would stay near home, and local funding could come from local sources.
3.19.2008 8:15pm
PersonFromPorlock:
frankcross:

...the federally funded interstate highway program was an enormous boon to this nation, economically and otherwise.

Um, maybe. It pretty much destroyed small town America, though. Whether you think that's good or bad may depend on how far back you can remember.
3.19.2008 8:36pm
Free Trader:
Leave it to a libertarian to suggest that the word "general" in general welfare means that the Constitution forbids all redistributive spending.

But of course, such an assertion is absurd. It is clearly impossible for any every individual item of spending to benefit everyone.

In fact, not only will not all spending benefit all individuals, but some items of spending will clearly harm particular individuals. (Think criminal law enforcement for an obvious example.)

It is pretty clear that the "general" welfare in the general welfare clause cannot mean that all spending benefit all individuals.

Having made that obvious point, it is pretty clear that there is nothing wrong with earmarks. Earmarks, taken as a whole, do benefit us generally. There is not a Congressional district or state in the country who have not been the beneficiary of some earmark. And that is the appropriate level of analysis. We don't look at every individual item of spending, we look at the system of spending as a whole. Any other interpretation would literally cripple our government. (Something I imagine that Bernstein would approve of, but certainly not anything required by our Constitution.)

By the way, one of the authors of the Federalist Papers suggested that the government engage in spending that would disproportionately benefit manufacturers.

Oh, and what about the Federal Governments assumption of the revolutionary war debts of the states? The amount of debt that the states had was very far from equal. Thus, spending on that debt would have disproportionate benefit to some states versus others.

The bottom line is that the interpretation of the general welfare clause suggested by David Bernstein is nothing short of anti-originalist.
3.19.2008 8:59pm
Free Trader:

So Madison vs. Hamilton, pick your Founder.


And the correct answer is Hamilton.

First, the point made by Elbridge Gerry is simply unanswerable. It is nonsensical to say that aggressive actions against Native American tribes benefiting frontier states is for the general welfare, then it clear that "general" in general welfare does not forbid redistributive spending.

Second, we all know whose side John Marshall took. The Madison and Jefferson view is dead.

Third, Jefferson repudiated this view of the general welfare by his actions with the Louisiana Purchase. And Madison repudiated this view of the general welfare clause when he went to Congress to beg for a Second Bank of the United States.

What does that illustrate? That an extreme view of the general welfare clause is entirely impractical.

Of course, libertarians whose only desire is to destroy government would love to revive this long dead view of the general welfare clause.

And it isn't because they believe in originalism. It is because they hate government.
3.19.2008 9:14pm
Free Trader:

Someone's Never Heard of the Constitution's "General Welfare" Clause


This is a sort of funny post. I hear no detailed exposition by Bernstein indicating that he is familiar with history. We in fact HAVE heard of the general welfare clause, and we know its history and we know your view has been long rejected by all the Founders that mattered, including Jefferson and Madison.

So, my question. Have YOU heard of the general welfare clause? I mean, in history and in action, as opposed to in your abstract fantasy land where the Constitution is somehow entirely separate from any functioning system of government.
3.19.2008 9:18pm
Pippin:
Free Trader:

The libertarian you cite does not argue that the General Welfare clause "forbids all redistributive spending." He makes reference to earmarks.

You offer little in the way of argument as to the meaning of the General Welfare clause. Rather, your use of "of course," "obvious," and "clear" suggests you don't have an interpretation. Your post is a series of conclusions.

So, let's start with this: Does the General Welfare clause provide any sort of limit to the spending powers of Congress?
3.19.2008 9:32pm
PersonFromPorlock:
DB, you wrong our noble legislators! They're just regulating interstate commerce as the Constitution requires.....
3.19.2008 9:35pm
pireader (mail):
The Supreme Court has essentially left it up to Congress to determine what constitutes the general welfare.

Professor Bernstein --

Are you suggesting that the Supreme Court should somehow restrain Congress' power to apropriate money to "provide for the ... general Welfare"?

I'd have thought that was the quintessential "non-justiciable question". Do you believe the contrary? Would appreciate knowing your reasoning (or simply a clarification, if I've mis-read you).
3.19.2008 11:32pm
DavidBernstein (mail):
What Pippin said. Also, free trader, I don't think that ANYONE serious has ever argued that the GW Clause allows a Congressman to, in good constitutional conscience, advocate and vote for an earmark that EVEN HE doesn't believe is for the general welfare, but is just for the benefit of a campaign donor or local interest group. The only argument I could think of, and it's not a persuasive one, is that private interest legislation is necessary grease for the wheels of government action that is meant to benefit the general welfare.

And Pi, all I'm saying is that the Supreme Court could try to enforce some limits on spending through the GW clause, but chooses not to. No matter how you slice it, though, the primary obligation surely rests with Congress and the Executive. The way I can see the USSC coming in to this is if the President refused to spend money allocated by Congress because it wasn't for the GW, and then Congress sues.
3.20.2008 12:21am
theobromophile (www):
...the federally funded interstate highway program was an enormous boon to this nation, economically and otherwise.

Someone didn't see Cars. Definitely worth the rental fee.
3.20.2008 12:46am
George Weiss (mail) (www):
DB

The way I can see the USSC coming in to this is if the President refused to spend money allocated by Congress because it wasn't for the GW, and then Congress sues.


or the interest group sues-in fact, im not even sure congress could sue under standing doctrine-but im not a real standing expert.
3.20.2008 1:35am
Free Trader:
DavidBernstein,

Mainstream opinion is that earmarks are Constitutional. You heard it here first! You say you have never heard ANYONE serious argue that earmarks are Constitutional. I resent the implication that I am not serious. But, coming from a wacko libertarian, I will take it as a compliment.

I don't believe you have never heard anyone argue that earmarks are Constitutional. But if its true, that probably is because this debate is so obvious and has has been resolved for a long time since, I would say 1816 at the latest when Madison came around to a more sensible position.

Now, we all agree, of course, that Congress must spend for the general welfare. That is not the issue. The issue is what does the phrase general welfare mean? And, this is mainstream Constitutional opinion here, most of us agree that earmarks are Constitutional under the grant of power to Congress that is the spending clause.

We think this despite some facts that we all know. We all know that local interests groups benefit disproportionately from particular earmarks. We all know that Congressman purposely allocate earmarks that benefit their own districts more than the rest of the country. How exactly does someone in Alabama benefit from highways in Alaska? Well, one could make an economic argument (they benefit because the world supply of oil is increased ever so slightly, lowering prices slightly to a degree that is massively dwarfed by other factors, like the war in Iraq...) And I think that is just great. Because guess what, if you are using THAT logic (and I entirely approve of it) then there is not, as a practical matter, any spending whatsoever that could not be said to benefit the general welfare. That is Wickard v. Filburn type logic right there.

Or how about this. Earmarks are beneficial because they allow us to be a nation. Alaskans may not benefit so much from roads in Alabama in particular. And Alabamans do not benefit from roads in Alaska in particular. But, Alabamans and Alaskans do benefit from a good economy in the United States in general. And they do benefit from roads in other states, especially taken in aggregate. Its an awesome set of network effects that we are leveraging here, and you have to look at it past any individual item of spending.

Here is a limitation for you. Congress may not allocate money to buy a huge house for a private individual. Why? Because any Congressman who tried to do so would not be re-elected...

I know, democracy is a bitch. Sometimes your remedy is *gasp* at the voting booth. Horrifying, I know. Especially with all those "ignorant" voters that do not realize that libertarianism is best that Ilya Somin loves to bitch about.

If only a libertarian utopia could be forced on us all via the courts and some creative interpretation...

You know, like the Warren court era, but in reverse.

But guess what, you aren't going to be able to take over the courts unless you can elect some libertarians to the Presidency. Real conservatives like Bush apparently have little use for libertarian judges. What to do? I guess you are stuck with democracy, whether you like it or not.

I am afraid that your beloved Lochner is dead, never to be raised from the dead despite your deepest wishes. Alas!

And I will tell you something else that most people agree on. The Courts have no business deciding what spending is for the general welfare and what spending is not for the general welfare.

What if Terri Schiavo, the woman who was on life support, could have been saved, but only at great expense to the Federal government. Do you think it is the business of courts to step in and tell Congress that such spending is not for the general welfare? =) Well, of course it is for the general welfare, once you realize that psychological well-being is an important part of the general welfare.

The bottom-line is that no system that takes "general" in "general welfare" to mean anything like, can't be redistributive is going to be getting themselves into a pit from which their is not intellectually satisfying escape. Jefferson and Madison learned this lesson first hand long ago. Maybe you should learn it now. =)
3.20.2008 2:01am
Free Trader:

So, let's start with this: Does the General Welfare clause provide any sort of limit to the spending powers of Congress?


Let us see. Can Congress vote for higher salary increases for themselves? Hmm... yes.

But is that not the ultimate form of self-dealing? And isn't that exactly what our Constitution contemplated from the very beginning.

Of course, there is an argument that increasing Congressional pay is in the general welfare. I mean, we have to pay them something, don't we. I mean, otherwise only individuals of independent means would be able to run for Congress.

And of course, it is not in the general welfare for Congress to consist of only those who are economically successful. Why not? Because I said so!

Well, there is a better argument, of course. It is in the general welfare for there to be a maximum number of candidates available, because there are some people who are not economically successful who we would want running our country. Like career civil servants and academics who have made economic sacrifices to pursue a career in the public good. And so on.

But guess what. As soon as you accept as broad of an understanding of the general welfare as the above, then it becomes clear that, as a practical matter, the vast majority of spending can be said to be in the general welfare. Unless you can read the hearts of your Congressman, it is hard to say that they do not intend for the public good with a particular item of spending, especially if they have any intelligent whatsoever in framing the issue.

And you know what, that is how it SHOULD be. Our understanding of the general welfare should be informed by what is practical and reasonable, not the same ideological madness that was rejected by both Jefferson and Madison when they were in positions with practical responsibility.

So to answer you question: The spending clause is a grant of power to Congress, not a limitation on the power of Congress.

If you don't like how Congress is spending money, go vote. Don't whine and bitch and go running to your nearest libertarian judge to save you and impose a particularistic and highly contentious view of what is for the greater good via a highly idiosyncratic interpretation of the general welfare clause.
3.20.2008 2:24am
DavidBernstein (mail):
In US v. Butler, the Supreme Court wrote: "The line must still be drawn between one welfare and another, between particular and general . . . . The discretion, however, is not confided to the courts. The discretion belongs to Congress." Thus, as I said, the Supreme Court has given Congress the responsibility of determining what is for the general welfare. FT's position seems to be that if Congress decides to vote for something, that inherently makes if for the "general welfare" and thus constitutional. My position is that even if a bill is passed unanimously, if each Congressman is thinking to himself, "this legislation is not for the general welfare, but I'm going to vote for it anyway because it serves my political interests," each is acting unconstitutionally, even if there is judicial enforcement.

The move to abolish earmarks stems from a belief that many earmarks not only don't serve the general welfare, but are not believed to when proposed and voted on. Given the constitutional obligation of Congress and its individual members to only support "general welfare" legislation, the idea that "The Founding Fathers would be cringing to hear people talking about eliminating earmarks" is absurd. I suppose SOME, but not all Founding fathers, would be upset if the debate over earmarks today was about local versus national spending as in the internal improvements debate of the 19th century. But it ain't, it's about circumventing the normal legislative process to engage in what amounts to legal corruption.
3.20.2008 2:26am
Free Trader:
Query:

Government assistant in allowing JPMorgan Chase to buy Bear Stearns for $2 a share. General welfare or not?

I say in the general welfare. Because it helps the economy. But doesn't it help JPMorgan Chase shareholders more than the rest of us? Answer: Yes.

If THAT is in the general welfare, everything is in the general welfare. As everything should be.
3.20.2008 2:30am
Asher Steinberg (mail):
The quote "general Welfare" is incomplete. It is "the general Welfare of the United States of America", a body-politic distinct and separate from 1) the individual States and 2) the People. The general Welfare spoken of is that general Welfare that is applicable to the entire Union and NOT to local pork.

How would courts possibly go about drawing this line? Take roads. Would you require the Congress to only spend on projects that include all 50 states? The Interstate Highway System only serves 48. So is that okay? If so, why aren't highways that link just a couple states? For that matter, why aren't intrastate roads constitutional? People do travel to other states, you know, and it's in their benefit that when they do so the roads are good there. More generally, it would seem odd if Congress could pay for, say, community centers in every state, but couldn't pay for community centers in just a couple.
3.20.2008 2:40am
Free Trader:

My position is that even if a bill is passed unanimously, if each Congressman is thinking to himself, "this legislation is not for the general welfare, but I'm going to vote for it anyway because it serves my political interests," each is acting unconstitutionally, even if there is judicial enforcement.


Well, I nearly agree with you. Except what if someone, in there heart of hearts really thinks: "My political interests are equivalent to the general welfare, because I plan on doing so much good with my political career. So, even though this bill doesn't serve the general welfare directly, it does serve it indirectly by advancing my political interests." Constitutional or Unconstitutional?

One more thing should be mentioned. The line between particular and general is not very clear as a conceptual matter, which is why the Supreme Court dodged this issue so long ago. First, how big of a group does the primary beneficiary have to be until benefiting that group can be said to be in the general interest? Second, to what extent do indirect benefits count? Surely, building roads in Alaska benefits Alabama citizens indirectly. Third, as some libertarians love to mention, to talk about society is to talk about a non existent abstraction. Concretely, societies are constituted by individuals. It is nonsensical to talk about social benefits without talking about individual benefits. Under some logic, it is of general benefit if Terri Schiavo's life is saved (say she was actually revivable, but only at great expense) at taxpayer expense, because we know that we or a loved one would be saved if we were in a similar situation. And not only that, having compassion for others and taking action based on that compassion itself is a benefit.

The bottom-line is that distinctions between the particular and the general are impossible to make, at least without the help of our good friend pragmatism.


But it ain't, it's about circumventing the normal legislative process to engage in what amounts to legal corruption.


The normal legislative process whereby huge government agencies allocate funds instead of Congress?
3.20.2008 2:47am
davidbernstein (mail):
The bottom-line is that distinctions between the particular and the general are impossible to make, at least without the help of our good friend pragmatism.
You may be right about the impossibility of, say, an objective, clear, judicially enforceable standard. But certainly a Congressman taking his oath to uphold the Constitution seriously can make some distinctions here, and something beyond the self-delusion that whatever advances his career serves the general welfare.
3.20.2008 2:56am
eyesay:
Asher Steinberg wrote: "Would you require the Congress to only spend on projects that include all 50 states? The Interstate Highway System only serves 48."

Interstate Highways in Alaska
Interstates in Hawaii
Interstate H-1 in Hawaii
Washington D.C. Interstates and Freeways
Interstate Highways in Puerto Rico

There are no Interstates in American Samoa, Guam, the U.S. Virgin Islands, and United States Commonwealth of the Northern Mariana Islands.
3.20.2008 5:32am
DDR:
James Madison, in Federalist #41:

"Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power ``to 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,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ``to raise money for the general welfare.'' But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?"

The "specification of the objects alluded to" is the list of the enumerated powers of Congress. So it looks like Madison intended "the common defense and general welfare of the United States" as a shorthand for the enumerated powers of Congress.

This is presumably the meaning that was assumed when the Constitution was ratified. So, if "general welfare" was reinterpreted later to have a wider meaning, that would represent an usurpation by the federal government.
3.20.2008 7:48am