Anyone, it appears, who would be driven up the wall by a reading of its enumerated powers.
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It happens that the General Welfare Clause appears in the sentence granting Congress the power to tax. The granting to the federal government of a taxing power was, in and of itself, an enormous victory for those who wanted a strong federal government. The Articles of Confederation, the claptrap agreement that the Constitution superseded, hadn’t given the federal government any power to tax. It’s no coincidence that taxing was the first of the enumerated powers. The way the Founders phrased it is that the Congress shall have the power “to lay and collect Taxes, Duties, Imposts and Excises, to pay for the Debts and provide for the Common Defence and general Welfare of the United States.”
Liberals like to suggest that the reference to the “general welfare” means Congress can do almost anything. Yet the record suggests that the Founders saw the General Welfare Clause as a limit on its taxing power. They even foiled a bid by one of the wordsmiths of the Constitution, Gouverneur Morris, to change the grammar of the clause by changing the comma after the word “excises” to a semi-colon and making a separate paragraph out of the phrase “to pay for the Debts and provide for the Common Defence and general Welfare of the United States.” This would have created not a limit on the taxing power but a separate and limitless spending power. Morris’s scheme was defeated; there was even testimony about it in the Congress by an early treasury secretary, Albert Gallatin. One scholar, Philip Hamburger of Columbia University Law School, has summed up the contretemps by noting, “Rarely has so much rested on so small a point.”
Not that parsing the grammar is the only way we have to divine the Founders’ intent with respect to the General Welfare Clause. James Madison himself addressed the matter in Federalist 41, when he, Alexander Hamilton, and John Jay were trying to get the state of New York to ratify the Constitution. He noted that it had “been urged and echoed” that the taxing power “amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” He called the view “a misconception,” noting that had it been true there would have been no need to continue with the long list of enumerated powers that follows.
However abstruse the grammar of the General Welfare Clause may be, it is likely to be only one of the issues in the case against Obamacare that has now been launched by more than half the states and is working its way toward the Supreme Court. For authority to require Americans to buy health insurance, Senator Baucus also cited another enumeration of federal power, the Commerce Clause. It grants Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In The Citizen’s Constitution, my annotated guide to our basic law, I liken the Commerce Clause to a “kind of constitutional shuttle on the loom of our national fabric — flung in one direction by states wanting to regulate matters that are beyond their reach, and in the other direction by a Congress that wants to regulate matters where it has no authority.”
History suggests that it would be reckless to take this power for granted. It was under the Commerce Clause that President Franklin Roosevelt’s administration tried to defend the centerpiece of the New Deal, a law called the National Industrial Recovery Act. The law was challenged by a family of poulterers from Brooklyn, the Schechter brothers, who had been convicted of criminal charges for failing to follow its dictates. The Supreme Court concluded the feds didn’t have the authority to regulate the butchers’ business within New York State and threw out the law in a decision that was unanimous.
Whether the Court will take such a line in respect of the health insurance mandate in Obamacare is hard to predict. The Schechter case stunned FDR and put it in his mind to pack the Supreme Court by expanding its membership. His court-packing scheme, while it failed in the Senate, seems to have rattled the Court. For no sooner was the packing plan presented than the Court started reversing course on the Commerce Clause, using it in a big case against Jones & Laughlin Steel to allow the regulation of labor and even, within a few years, to let the government prohibit a farmer, the hapless Roscoe Filburn of Ohio, from growing crops on his own farm for his own use.
AS THE OBAMA ADMINISTRATION presses for ever more power, the battles over the General Welfare Clause and the Commerce Clause will be something to behold. But they may prove weak beer compared to the immigration case that is shaping up at Arizona. It presents an odd reversal of roles from the Obamacare cases. The challenges to Obamacare are being brought by states that assert the Congress acted where it didn’t have an enumerated power. In the immigration case, known as United States v. Arizona, the claim is that a state acted where the Congress holds the enumerated power, putting the Grand Canyon State in violation of the Supremacy Clause that establishes the Constitution, and the United States laws and treaties made under it, as the supreme law of the land.
Congress’s power in respect of immigration is enumerated as the power to “establish an Uniform rule of naturalization.” The plain meaning of the phrasing suggests that insisting on a rule that is uniform the Founders wanted to make sure that there wasn’t a different route to becoming an American depending on which state was involved, i.e., they wanted a nation. “The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country,” is the way America puts it in the complaint in United States v. Arizona.
The supremacy of the enumerated power of naturalization that the Constitution gives to Congress isn’t the only issue in the Arizona case, though; there are civil rights claims as well. One of the odd things about the Arizona case, in any event, is that America is asserting a power that it could be argued it has chosen not to use — or, if there is a uniform rule, to enforce. It is hard to predict how the case will fare should it get to the Supreme Court. But it is not hard to predict that, given the scale of the failure to secure the southern border and the level of tensions on both sides of the question in Arizona and other states, the case could emerge as explosive.
NOT, HOWEVER, AS EXPLOSIVE as the question of whether the dollar has to be accepted as legal tender, which I believe is the most important constitutional question awaiting a champion. It happens that the Constitution didn’t create the dollar; it was in existence at the time the Constitution was written. What the Constitution did was grant Congress the power to coin money and regulate its value. It first did so in the Coinage Act of 1792, which adopted the dollar as the unit of account and set its value at 371 grains of pure silver or the free market equivalent in gold.
The greenback came into being as a way to pay for the Civil War, and no doubt preserving the Union was worth an enormous risk. But the dollar has gone downhill from there, rarely more rapidly than in the past decade, in which the dollar has plummeted in value to little more, at the time of this writing, than a 1,400th of an ounce of gold. Despite the plunge in value, the greenback has to be accepted as legal tender in payment of debts. It has been that way since 1871, when the Supreme Court decided a pair of cases, one involving a payment for a flock of sheep and the other some land, that the greenback would have to be accepted. It later ruled, in a case involving payment for cotton, that even without war as an excuse, the greenback had to be honored.
So sickening has been the steepness of the recent plunge in the value of the dollar that there are serious people thinking about whether it would be possible to reopen the question of legal tender. They are not worried about inflation as defined by the consumer price index; they are worried about future inflation and the very definition of the dollar. Received wisdom suggests it would be impossible to challenge legal tender laws. But feature this. A group of the most distinguished judges on the federal bench — Peter Beer, U. W. Clemon, Terry Hatter, Thomas Hogan, Richard Paez, Laurence Silberman, and A. Wallace Tashima — is asking the Supreme Court to overturn a decision of Congress to suspend an automatic adjustment in their pay to account for the inflation that had been ravaging their income. The judges don’t like the prospect of getting paid in dollars that aren’t as valuable as they used to be. In that, they are just like the rest of us.
Or are they? Well, not quite. It turns out that Founders who framed our laws were so furious about the way George III made judges subservient to his own will for payment of their salaries that they listed — right in the Declaration of Independence — the abuse as an enumerated cause of our seceding from England. Then they wrote into the Constitution that the pay of a federal judge shall not be diminished during his term in office. That is American bedrock. So if in, say, the year 2000 a judge was paid in dollars that were worth a 265th of an ounce and today is being paid with dollars worth less than a 1,300th of an ounce of gold, has his pay been diminished?
To consider the scale of what one is talking about, regard the pay of Judge Silberman. When he was assigned to the District of Columbia Circuit of the United States Court of Appeals, the salary of a federal appeals judge — $83,200 at the time — was worth 258 ounces of gold. The value of the current pay of a judge on one of the appeals circuits — $184,500 — has plunged to a measly 139 ounces of gold. Were Judge Silberman paid in gold from the start, his pay would today be something on the order of $350,000, which is much more like what it should be, particularly given what the federal bench needs to be paying to attract the best minds in the legal profession.
This isn’t quite the argument the Honors suing over their pay are making before the Supreme Court, at least not yet. Their petition for a Supreme Court hearing suggests they want merely to enforce the automatic adjustment that Congress in recent years has suspended. I don’t mind saying that, while I believe the justices have been wronged by Congress, I hope they lose on the question of whether a suspension in the automatic pay adjustment is unconstitutional. That should get them angry enough to come back and look legal tender in the face. They could force the Congress to pay them in the gold or silver equivalent of a federal judge’s salary at the time they were appointed to the bench. It would move judges to the kinds of salaries the lawyers before them are receiving.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?
H/T to National Review Online