fromtheright

You guys are usually quick to point to Madison's stated views as authoritative as to the Establishment Clause. I just wonder if you would think him the decided authority as to the general welfare clause.

From Federalist Number 41:

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? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are ``their common defense, security of their liberties, and mutual and general welfare. '' The terms of article eighth are still more identical: ``All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,'' etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.

But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

(From this <a href="http://memory.loc.gov/const/fed/fed_41.html" target="_blank">web page</a>)

Corey Hammer

Hmmm. Let's see. Federalist #41 was written in 1788. Madison was a leading proponent of the Bill of Rights because he thought the Constitution was vague on some matters. The Bill of Rights was written 1789. Methinks that Madison was happy with the limits on Federal power after that.

So, your quotation is worthless.

fromtheright

Hmmmm, let's see. Madison was not a leading proponent of the Bill of Rights until after it was raised during the debate. In fact, during the ratification debates on the Constitution, Madison argued against one.

I'm not sure what you meant by "happy with the limits on Federal power after that" since he used the same argument in his debate with Alexander Hamilton over the National Bank.

So you still haven't answered my question. Was his view of the general welfare clause as authoritative as his later view on the Establishment Clause which I'm assuming you do take as "Gospel"?

[ December 23, 2002: Message edited by: fromtheright ]</p>

Corey Hammer

Editted because my initial comments were based upon a misreading of above and not reading the original.

Oh yeah. Forgot that. Then he vigorously fought for it.

According to you it was the same argument. What was the date and do you have a link to the debate? I'd like to read his text. Sometimes, arguments may sound similar but not apply to the same situations.

Madison is making a counterargument to the opponents of the Constitution that say "Yes, yes. Taxes are fine, but what about these things..." To which he replies, that they ignore the rest of that clause that specifies what Congress can do. He's saying, "No look. There are limits and specifications."

I still don't see what the deal is. What point are you trying to make?

[ December 23, 2002: Message edited by: Corey Hammer ]</p>

Living Dead Chipmunk

Something about how a non-Christian couldn't possibly have had anything to do with the founding of our nation.

Of course, he still thinks that judges putting up signs in their courtrooms saying "I AM THE LORD THY GOD" isn't a separation issue.

fromtheright

(ignoring chipmunks chattering)

CH,

What was the date and do you have a link to the debate?

I'm sorry I don't have a link. My sourcebook is Language of Power: An Early American Sourcebook or something like that.


I still don't see what the deal is. What point are you trying to make?

Well, let me state it again:

You guys are usually quick to point to Madison's stated views as authoritative as to the Establishment Clause. I just wonder if you would think him the decided authority as to the general welfare clause.

To hopefully make it a little clearer, though: My point is that most of you tend to be (yes, of course, I understand not all of you) rather liberal in your political views and accept a fairly expansive reading of the Constitution and the Federal government's powers (no, I'm not going to dig up posts; if it doesn't apply to you then ignore it), a view that usually relies heavily for Constitutional justification on the general welfare clause. To continue, Madison seems to be one of your primary authorities for your strict CSS view. I just wonder if you hold his view of the strict limit of powers in such high esteem. If not, why do you accept his view on one and not the other?

Daggah

Just a guess, but maybe it's because his views on CSS separation are confirmed by quotes from other founding fathers and 200 years of Supreme Court cases, while his views on limits of power are not?

Corey Hammer

And, also probably because he changed his mind. He later advocated the Bill of Rights as limits on Congress's authority.

The federal welfare program was justified at the time under the general welfare clause and I believe Amendment 10 (that states and localities were ineffective at dealing with poverty).

fromtheright

Fair enough, Daggah. But, Corey, I'm not sure where he changed his mind (if that's what you are saying) on the general welfare clause. Also, they aren't mutually exclusive, as I don't recall that much if any of the clamor for the Bill of Rights had to do with fear over the general welfare clause. In any case the Bill of Rights was just a further limit on the powers of the central government, it didn't undo the GWC. But I'm getting off topic, I guess.

Thanks for the answers. The question just struck me so I thought I'd ask.

SLD

No, No, No, No, No. You don't understand. The General Welfare Clause, is just like Madison said - pretty much meaningless. But so what? It is has never been used to justify any piece of legislation passed by Congress. Find me a court opinion on the GW clause, and I can assure you that it pretty much either quotes Madison or follows him to the tee. That doesn't make the legislation unconstitutional though, it just means it must fall into one of enumerated powers under the GW clause. The real question is not the GW clause, but the Commerce Clause. What did Madison say about that?

Answer: Notta. It didn't come up that often. However, his political opponent, Marshall took a rather expansive view of it in his few opinions dealing with it. This view was later rejected by more libertarian Supreme Court late in the 19th Century and early in the twentieth - until of course, their decisions directly impacted the Great Depression and Roosevelt threatened to pack the Court to get it to change.

Thus quoting Madison's views on the GW Clause is irrelevant to the debate, since the GW Clause is considered legally irrelevant by Constitutional Scholars on both sides of the aisle.

But the real bottom line is this: Quoting the Founding Fathers is all well and good, but not the be all end all of Constitutional interpretation. They left us a broad vaguely worded document which is open to a variety of interpretations (within limits). And they themselves recognized this point. We don't live in the 18th Century and we aren't bound by any one particular viewpoint on the Constitution. Their views are important, but in the words of Justice Holmes, the language of the law is experience. Madison and Jefferson's views on Church-State issues aren't merely Constitutional because they say so, but primarily, because those ideas have stood the test of time. While I agree with Madison and Jefferson on church state issues, on the other hand I think they were hopelessly naive about Federal vs. State power issues. I feel free to use their views or to criticize their views in the light of experience. Their views of state vs. federal power, IMHO, have not stood the test of time. States have more often than the federal governments, worked against individual liberties. It is the Power of the individual and the rights of the people as a whole that are to be protected.

SLD