What Spending Clause? (Or the President's Paramour): An Examination of the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause 1 of the United States Constitution

Abstract

Since 1833, Justice Joseph Story's interpretation of the General Welfare clause of Article I, Section 8, Clause 1 of the United States Constitution has ruled as the "standard model." Story's interpretation, set out in his Commentaries on the Constitution and its derivative volumes, held that the General Welfare clause was a limit on Congress's power to levy taxes but was also a grant of power to spend tax revenues for "general welfare" purposes. Story's interpretation was adopted by the United States Supreme Court in United States v. Butler, 297 U.S. 1 (1936); Chas. Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937); and South Dakota v. Dole, 483 U.S. 203 (1987). "What Spending Clause," examines the Hamilton's, Madison's, and Story's interpretations of the General Welfare clause. Employing a textual analysis, the author concludes that neither Hamilton, Madison, nor Story articulated a defensible interpretation. The author concludes that Story's interpretation, that the General Welfare clause grants Congress the power to spend in furtherance of the general welfare, expands the powers that follow beyond their self-contained limitations. Because this does violence to the text, he holds that the General Welfare clause cannot be seen as a grant of a congressional spending power. The author also points out that a spending power is lodged in the Executive branch and that the Executive's spending power is not limited by the General Welfare clause. The Article also examines pre-colonial, colonial, and post-colonial history and its relationship to the General Welfare clause. The author argues that the Crown's abuses of the taxing power and the Colonies' understanding of the regulatory role of duties, imposts, and excises better explains the meaning of the General Welfare clause. The Article concludes that the General Welfare clause may be understood to serve two purposes. First, the General Welfare clause is a redundant check on the power to tax. The uniformity and proportionality clauses offer guarantees against discriminatory taxation. They address specific and known abuses. The broader General Welfare clause guards against ingenious and unforeseen means of discriminatory taxation. Second, the General Welfare clause is a restatement of the power to regulate by means of duties, imposts, and excises. Had the General Welfare clause been omitted from the Article I, Section 8, Clause 1, a strong argument could have been made that Congress had been denied the power to regulate by means of duties, imposts, and excises. The Article contends that, between Story's interpretation, which has the effect of expanding enumerated powers beyond their self-imposed limitations, and an interpretation that comports with the Convention's pattern of intentionally including redundant clauses and that comports with the Colonies' historical understandings of taxing abuses and the regulatory role of indirect taxation, the latter interpretation should prevail.

JEL Classification: K19