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Thursday, March 17, 2011

Speaking Of Madison

Usually when discussing universal healthcare, I bring up "general Welfare" as being, along with Congress' power to tax, all the Constitutional permission needed to implement Medicaid, Medicare, Tricare and whatever other public option or single-payer system that we want.  Often that interpretation is countered by citing Madison's narrow view of Congressional power:

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...

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.

I appreciate the objection because dog knows the Constitution would be rather useless if it essentially allowed Congress to do anything it wants.  But it kinda does, and Congress kinda acts like it no matter what's written down, so it's up to the People as the ultimate sovereign to mitigate the potential problems.

It's been a sort of puzzle to me how Madison and those who quote him think that Congress could only do very specific enumerated things in light of Section 9.  If we could rely solely on construction as an absolute limit of Congressional power, why even bother with a list of limits and prohibitions?  I see nothing in Section 8 saying Congress can suspend habeas, for example, so why prohibit that explicitly?

Yes, I actually understand why that section is there.  But this argument based on the document's design is not compelling, even coming from the Father of the Constitution.

So I've always been more Hamiltonian in this regard:

The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. 

Even Madison backed off from his strict construction when the practicalities of running a nation based on a constitutional framework made it difficult to be absolutely pure.

In the Constitution, the great ends of government were particularly enumerated; but all the means were not, nor could they all be, pointed out, without making the Constitution a complete code of laws: some discretionary power, and reasonable latitude, must be left to the judgment of the legislature.

The above comes from debate about a national bank and the Necessary and Proper clause (another Hamiltonian favorite), but it's essentially the same thing you can say about the general welfare.  And about 145 years later, the Supreme Court finally weighed in:

[We] conclude that the reading advocated by [Hamilton] is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

Obviously we can still argue about just how far that power to tax goes and what the money can be spent on, but the details are not discussed in the Constitution, thankfully.  So you might, for example, not think universal healthcare is wise, but please stop with the cries about how it's not constitutional--it is as general as welfare can get, and your disagreement on the merits is not the same as injuring the Constitution.

And this is why I've found what's going on in Wisconsin and Michigan to be so important, oddly enough.  A lot of folks are--rightly, in my view--upset with how the WI-GOP has treated Senate Dems and how the MI-GOP has granted tyrannical powers to their Governor.  Problem is, as ugly and anti-democratic Republican actions are, they're perfectly legit from a constitutional POV*.

That observation appears to surprise people.  Some of it is probably because we don't teach a lot about our federal and state constitutions that much, so people assume certain things are in there (e.g., majority rule).  I think it's mostly because we've gotten a bit complacent since, in general, our history has shown that we've become incrementally more democratic over timeand government has been fairly restrained in its exercise of granted powers.

But when you elect extremists who have pretty much advertised what they're about--even if Walker didn't specifically say he was going to bust unions and Snyder didn't campaign on destroying towns--you can expect extreme policies.  And you can't just rely on any constitution to prevent power grabs because no constitution can prevent such things.

I hope recent events serve as a lesson to us all, especially the folks who didn't turn out in 2010 because they were disappointed with Obama.  Don't let the bastards walk away with it, and don't assume they'll behave because they're constitutionally bound.  So let's get to work on those recalls in 2011, and be ready to fight hard in 2012 and beyond.


* WI: see Joint Rule 10 and Senate Rule 1m(2).  MI: see Article VII § 21.

March 17, 2011 | Permalink


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still miss you at Eschaton. there's change. new comment thingee. oh, just come already.

great post by the way. never would have thought you were any kind of Hamilton fan. And actually, the biggest problem still remains: too many people vote stupid. that has to stop. too many people are gun nuts first. or fetus huggers first. or just bitches first. now they get to discover that they are really union members first. or working class first. hope it's not too late.

Posted by: Little Boots | Mar 18, 2011 12:31:25 AM

plus there's this whole anniversary thing going on. reminiscing. you have to be part of that. really.

Posted by: Little Boots | Mar 18, 2011 12:54:57 AM

I'm a fan of tension, so I like Hamilton and Jefferson, Federalism and state sovereignty, etc. It's the crucible of progress, the resolution of conflict, the provider of balance.

I see there's a new design Over There. Glad to see 2003 is finally being left behind...

Posted by: NTodd | Mar 18, 2011 10:24:55 AM

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