Tuesday, February 9, 2010

Health care reform IS Constitutional: a scholarly review

It has been suggested by some on the right that all the powers that Congress has as laid out by Article 1 Section 8 of the Constitution are not enough to pass health care reform. It's assumed that the powers of Congress are limited by this section; but since our nation's founding that assertion has been challenged. The Supreme Court has dismissed that notion as well.

Article 1 Section 8

The first clause reads:
The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States (Emphasis added).

The term "general welfare" has been argued over since the founding of our country, and there are two views as to what this part of the clause may mean, from two founding fathers' interpretations: Hamilton and Madison.

From the Cornell Law website:

The grant of power to “provide . . . for the general welfare” raises a two–fold question: How may Congress provide for “the general welfare” and what is “the general welfare” that it is authorized to promote? The first half of this question was answered by Thomas Jefferson in his opinion on the Bank as follows: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union.”


With respect to the meaning of “the general welfare” the pages of The Federalist itself disclose a sharp divergence of views between its two principal authors. Hamilton adopted the literal, broad meaning of the clause; Madison contended that the powers of taxation and appropriation of the proposed government should be regarded as merely instrumental to its remaining powers, in other words, as little more than a power of self–support. From an early date Congress has acted upon the interpretation espoused by Hamilton.


In United States v. Gettysburg Electric Ry., the Court had invoked “the great power of taxation to be exercised for the common defence and general welfare” to sustain the right of the Federal Government to acquire land within a State for use as a national park.

Finally, in United States v. Butler, the Court gave its unqualified endorsement to Hamilton’s views on the taxing power. Wrote Justice Roberts for the Court: “Since the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no 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 enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the numerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it 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 had noticed the question, but has never found it necessary to decide which is the true construction. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Justice Story is the correct 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 Sec. 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”

(All emphasis – bolded and underlined – added)
The Court, then, in keeping with the traditions of the founding fathers, held that the powers of Congress included the "general welfare" interpretation that we continue to use today. In short, the powers of Congress are not limited to the powers that follow clause 1 of Article 1 Section 8 of the Constitution. Rather, the "general welfare" clause is an important aspect of the powers that Congress does hold.

Hamilton also wrote:

The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper.

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