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Congress’ Limited Tax and Spend Power

Below is the full text of Article I, Section 8 of the U.S. Constitution:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Notice that there are a number of enumerated powers listed directly after the opening clause of the section containing the general welfare provision. It is also important to note, as James Madison pointed out in Federalist 41, that the listed enumerated powers and the opening clause are only separated by a semi-colon and not a period.

Also notice that the necessary and proper clause explicitly grants Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.”

For Madison, the meaning of both parts of this Section were obvious on their face: The Constitution granted Congress the power to tax and spend only for those national priorities listed in the Constitution.  Madison believed that this was plainly made clear by the construction of the text because to assume the general welfare clause or the necessary and proper clause granted unlimited powers to Congress, would make the powers expressly listed in this section (and the rest of the Constitution) redundant.

Madison’s position is explained here:

According to Madison in Federalist #41, the statement of the power to tax and spend serves as the general statement with the manners in which that general power is to be exercised explicitly enumerated thereafter.

For example, if the portion of the clause “to provide for the common defense” was indeed a standalone power, why would the founders then explicitly list a power “To raise and support armies”? It would be redundant. Does providing for the “common defense” exclude the raising and supporting of armies? Absolutely not. Therefore the only reasonable construction is that the power to raise and support armies is the explicit enumeration of the manner in which the general power to provide for the common defense is to be carried into effect.

We can then deal with the “promote the General Welfare” portion of the clause in a similar manner. An example of the manner in which the General Welfare is to be promoted can be demonstrated by the power “To establish post offices and post roads”. Again, any alternative construction renders the enumerated power redundant.

Lastly, the founders were very precise in their wording. They used the words “person” or “citizen” when speaking of individuals and the phrase “United States” or the word “union” when referring to the federation of states. The general power to tax and spend in Article I, Section 8 clearly states that the powers are directed at the “United States” not “persons” or “citizens” therefore the power applies only to objects which will promote the solidarity and prosperity of the union of states, not its citizens.

It is beyond comprehension that any court could so disastrously misinterpret an entire section of the Constitution. As Madison predicted in Federalist #41, just such a construction has led to a Congress limited only by its own imagination rendering the Constitution itself completely irrelevant.

Given that one of the framers of the Constitution believed that Congress’ powers were so limited, shouldn’t the Courts revisit this interpretation given that through the health care reform bill, Congress has claimed vast new powers for itself?

Categories: History
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