I got a bit of a kick reading Ian Millhiser’s Rally ‘Round the True Constitution. He does a spectacular job of fearmongering by suggesting that “Tenthers”, his derogatory term for conservative politicians who, in opposition to health care reform, cite the Tenth Amendment like it’s going out of style, hold a theory of constitutional law that he considers both radical and dangerous (has he not heard of stare decisis?). While I may share Millhiser’s disdain for this, albeit for different reasons, many of his attacks on the “Tenthers” and conservative constitutional theories, are nothing more hack partisan hit jobs. He distorts and oversimplifies the constitutional history which led to the transformation of constitutional doctrine under the New Deal. His attacks on their theories, which is really an attack on the theories and ideas developed by the legal conservative movement over the last 30 years, amount to little more than lamenting the fact that they read the text too narrowly to find constitutional many of the progressive reforms Millhiser favors. While this is understandable given that it comes from a liberal site, any serious critique of legal conservatism should be a little more substantive but this post is not the place to rehash or elaborate upon those debates.
Normally, I would treat articles like this one the same way I treat the Constitution-butchering nonsense coming from the likes of conservative sites, ignore it. However, Millhiser, in his zealous quest to slay the Tenthers by beating them on their own textualist grounds, invokes the General Welfare Clause. While I commend his bravery in doing so, his attempt to use the General Welfare Clause to give constitutional justification to his favored policy preferences is ultimately unpersuasive. Millhiser writes:
Additionally, while the Depression-era justices provided much of the movement’s intellectual framework, today’s tenthers are extreme even by 1930s standards. The Constitution gives Congress 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,” thus empowering the federal government to levy taxes and leverage these revenues to benefit the American people. Tenthers, however, insist that these words don’t actually mean what they say, claiming that spending on things like health care, education, and Social Security is simply not allowed.
Their basis for ignoring the plain language of the Constitution is a statement by James Madison that federal spending is only really permitted when it advances one of Congress’ other enumerated powers, such as by building a post office or funding a war. Since the words “health care” do not appear in the Constitution, there can’t be any federal power to pay for health care, and the uninsured can eat cake.
Although tenthers are correct that Madison did make such a statement, his views hardly reflect the founding generation’s consensus. Alexander Hamilton, the nation’s first Treasury secretary and a co-author of Madison’s Federalist Papers, emphatically rejected Madison’s claim that the words “provide for the … general welfare of the United States” have any kind of secret meaning. Moreover, it is not even clear that Madison still believed that the Constitution requires a decoder ring when he was elected to the White House. Justice Joseph Story, whom President Madison appointed to the Supreme Court, was a Hamiltonian.
If anything, the tenthers’ invocation of Madison reflects the danger inherent in any appeal to the founding generation. Early American politics were at least as contentious as our own, and the framers debated the Constitution’s meaning with just as much zeal and uncertainty as we bring to such arguments today. Indeed, the framers’ many conflicting statements offer such a rich menu of viewpoints that it is possible to find a quotation to support nearly any political agenda.
While Millhiser argues that the General Welfare Clause does support policies like Social Security and that the Tenthers are ignoring the plain meaning of the text, he establishes no credible case for his cause. In fact, he gives credibility to their arguments by acknowledging that James Madison’s views of that clause was derived from the doctrine of enumerated powers and that the language was, in effect, a limitation on the power to tax.
At this point, Millhiser starts goes completely off the rails. In the third paragraph I quoted, he attempts to rebut the Madison position by claiming that Madison’s view “hardly reflected the consensus”. He does this not by providing any sort of real evidence that can be taken from the historical record, but by invoking the broader view of power held by Alexander Hamilton. Yes, Madison and Hamilton disagreed on this issue, but does Hamilton’s disagreement with Madison logically lead one to conclude that Madison’s view was not the consensus? No.
Legal scholarship that has addressed this subject (here and here) by looking into the history of the clause, the ratification debates and other sources (the views of former Presidents) demonstrates, quite convincingly, that the Madisonian view was the predominant consensus. It was the consensus during the ratification debates (the Federalists had to assure the anti-Federalist that such a clause was not meant to be an open-ended grant of power). While the Hamiltonian view did influence, to some small degree, George Washington and John Adams when each served as President, after the election of 1800, the Madisonian view became predominant amongst future Presidents. I will take this one step further and suggest that given that the Supreme Court’s federalism jurisprudence up until the 1930s suggests a distinctly Madisonian view given its relative unwillingness to sharply deviate from the doctrine of enumerated powers, even during the early years of the New Deal. ***
Even if the historical background provides enough evidence to support the Madisonian position, contrary to what Millhiser believes, there is uncertainty in the historical record. As such, support for the Madisonian position should not rest on history alone, but should be supported by the text of the Constitution (assuming such textual support exists). I think that the Madisonian position is supported by the text of the Constitution, either through basic rules of constitutional interpretation and/or construction or by the text itself.
First, consider a basic rule of construction regarding surplus text: less is better. Then consider that the Framers paid very close attention to where their language was specific and where it was vague. Had the General Welfare Clause been written the way modern liberals tend to cite the language, not only would it throw the doctrine of enumerated powers under the bus, but it would render every single piece of constitutional text that follows that Clause in Article I, Section 8 completely dead letter. As the only limiting principle to the clause is general welfare, which can cover just about everything (and certainly the other enumerated powers), there is point in specifically listing the enumerated powers that follow. Another reason to question the Hamiltonian view is the plain text of the Tenth Amendment, which speaks of powers not delegated to the United States with the clear implication that there are powers delegated to the federal government and that those powers are specifically enumerated in our Constitution. As such, a broad reading of the General Welfare clauses is incompatible with the text of the Tenth Amendment Where such inconsistencies exist, a general rule of construction is that the new text trumps the old text (hat tip Brother Mark). Also, it is well understood that the Ninth Amendment was drafted as a safeguard against further encroachments against those individual rights not enumerated in the Constitution. In his concurring opinion in Griswold v Connecticut, Justice Goldberg wrote:
The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights…. I do not mean to imply that the …. Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government….While the Ninth Amendment – and indeed the entire Bill of Rights – originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.
Millhiser’s analysis falls short. Not only does our history support the prevalence of the Madisonian position during the founding era, but also further support can be drawn from the text of the Constitution itself. As he wasted no time dismissing Madison and warning us about the dangers of appealing to the founding generation, I am most amused by his eager willingness to ignore his own warning, appeal to the founding generation, embrace the viewpoint that best fits his political agenda, ignore any and all evidence to the contrary and attempt to interpret the document to suit his own policy preferences.
Updated: hat tip (and my apologies) to Smitty. Stacy, thanks for pointing out the error. Correction made.
*** That the Supreme Court fully embraced the Hamiltonian position as a matter of legal doctrine (see United States v Butler and Helvering v Davis) speaks more of the underlying tensions that were representative in pre-1937 New Deal jurisprudence than it does the validity of the Hamiltonian position. The language in Butler was legal dictum with no support for that position.