Enumerated Powers Series: The Spending Clause

I’m going to start by saying that in studying the details of this spending clause, I audibly gasped many times at what I was learning. I’ve always known generally the facts I learned, but the immensity of this spending clause and how it’s re-interpretation has changed our very understanding of the Constitution and federalism is truly staggering. So please, don’t gloss over this clause because it sounds boring. As American citizens, this clause is critical to know and understand.

The spending clause goes as follows: “to pay the Debts and provide for the common Defence and general Welfare of the United States;“

And that’s the extent of it. Ah, what power can be found in such few words.

Historical Context

Here’s the thing, when our founders created the Constitution, they didn’t agree on everything about it. It was a compromise of many different theoretical, philosophical, religious and political beliefs. The same can be said of it interpretation after it was ratified and the standing supreme law of the land. There were two significant strains of understanding that came to dominate the political debates of the time: Hamiltonian and Madisonian. (The irony of this, of course, being that both of these men took part in writing the Constitution and both of them collaborated in defending it by writing some of the most expansive essays on its meaning to date.)

Notice the language in the clause. It says that the money accumulated through taxation can be used to pay the nation’s debts, which was significant at the time because of the Revolutionary War, and to provide for the common defense of the country, which was also significant at the time because of the Revolutionary War, and finally to provide for the “general welfare” of the country.

Hamiltonian: the term "general welfare" is broad and not directly connected to the subsequent enumerated powers in the same clause. Since it's not connected to the following powers, the spending power is not limited to being used only for such powers. In which case, the only "justification" needed for federal spending is whether the spending affects the "general" rather than "specific" welfare of the country. 

Madisonian: I'll use his own words to describe his perspective. 

"It will follow, in the first place, that if the terms be taken in the broad sense they maintain, the particular powers, afterwards so carefully and distinctly enumerated, would be without meaning, and must go for nothing. It would be absurd to say, first, that Congress may do what they please [the general welfare clause]; and then, that they may do this or that particular thing [The subsequent enumerated powers. Remember, the spending clause is in the very first enumerated power.]. After giving Congress power to raise money, and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to superadd a power to raise armies, to provide fleets [in other words, to tell Congress they can spend money on what they see fit as general welfare and then give them specific topics about which they can spend money on], &c. In fact, the meaning of the general terms in question must either be sought in the subsequent enumerations which limits and details them, or they convert the government from one limited as hitherto supposed, to the enumerated powers, into a government without any limits at all."

In sum, Hamilton advocated for arbitrary spending power while Madison wanted limited spending power.

Madison accurately predicted what would materialize should this “general welfare” clause be left to the whimsical interpretation of Congress.

"There are consequences, sir, still more extensive which as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing, from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare."

And so, which interpretation do you think won out? Especially given what the founders knew and what we know of human nature and power…

Naturally, Hamilton’s.

“The natural progress of things is for the government to gain ground and for liberty to yield.”

Thomas Jefferson

Evolution

In sum, at this point, a third of a state budget is made up of federal funding. States rely on the funding and must comply with federal standards accordingly. The more the state survives of off federal funds the more power the federal government has over the state and less autonomy the state has over its own government.

Modern Application

Today the Court allows the federal government to coerce state behavior with few limitations. These are the three constraints the Court has established, though rarely use.

1. The Court has established that the federal government make the conditions clear at the time the states accept the grants.
2. The Court has established that a condition too “loosely” related to the purpose of the grant may be considered unconstitutional. (In South Dakota v. Dole, for example, the Court upheld a law conditioning receipt of federal highway funds on states’ raising their drinking ages to 21, because both the funding and the condition promoted “safe interstate travel.”)
3. In rare occasions the Court may arbitrarily decide that the federal government’s “financial inducement” is too coercive.

In sum, there really is no limit to the spending power or coercive will of the federal government over the state governments. Since there is no limit, any hope the states and citizens have lies in the arbitrary whim of the Court at the time of a challenge. Hence, the spending power of Congress as related to the “general welfare” clause has proved Madison a prophet.

Conclusion

Perhaps there is no greater example of arbitrary power than how this spending clause is interpreted and used to justify massive swaths of federal power today. There is no clear standard by which to compare Congressional spending if this clause is not attached to the rest of the enumerated powers in Article One Section Eight. Thus, if there is no clear standard, there is no standard at all and government’s power is all but limitless.

“The natural progress of things is for the government to gain ground and for liberty to yield”. – Thomas Jefferson

The Liberty Belle