- An interesting point brought up by Hamilton concerning the use of government money to promote the 'General Welfare".Hamilton noted that Jefferson had argued, in opposing the National Bank, that Congress can only levy taxes to pay the debts, or to provide for the welfare of the Union. But this is no argument against a national bank, Hamilton says. ``It is true that they [Congress] cannot without breach of trust, lay taxes for any other purpose than the general welfare, but so neither can any other government. The welfare of the community is the only legitimate end for which money can be raised on the community.''The only restriction, Hamilton continues, is that money thus raised, cannot be applied for any merely local purpose. ``The constitutional {test} of a right application must always be, whether it be for a purpose of {general} or {local} nature. If the former, there can be no want of constitutional power.... Whatever relates to the general order of the finances, to the general interests of trade etc., being general objects are constitutional ones for {the application} of {money}.'' (emphasis in original)This is further elaborated in the ``Report on Manufactures,'' in which Hamilton declares that the general interests ofLearning, of Agriculture, of Manufactures, and of Commerce, are all within the purview of the General Welfare.Hamilton argued that the wealth, the independence, and the security of the nation are all connected to the prosperity of manufactures. As opposed to the free traders of the time--or what we would call the ``globalizers'' today--Hamilton contended that: ``Every nation ... ought to possess within itself all the essentials of national supply. These comprise the means of {Subsistence, habitation, clothing, and defence.}''``The possession of these is necessary to the perfection of the body politic; to the safety as well as to the welfare of the society .... The extreme embarrassments of the United States during the late War, from an incapacity of supplying themselves, are still matters of keen recollection,'' Hamilton wrote, urging that this was the next great work to be accomplished, lest the United States again face the same situation in a future war.Hamilton also strenuously disputed the false but popular notion that ``though the promoting of manufactures may be the interest of a part of the Union, it is contrary to that of another part,'' particularly as that argument was made with respect to the northern and southern regions of the Union. In fact, Hamilton argued, manufacturing is in the {general} interest of the entire nation, and ``the {aggregate} prosperity of manufactures, and the {aggregate} prosperity of Agriculture are inimately connected.'' (emphasis in original)Hamilton declared unequivocally that the Federal government had the right to promote manufactures under the General Welfare Clause of Article I, Section 8. The objects for which Congress can raise money, Hamilton explained, ``are no less comprehensive then the payment of the Public debts, and providing for the common defense and the general Welfare.''In his Final Address to the Congress in 1796, George Washington endorsed Hamilton's view.Washington noted that ``Congress have repeatedly, and not without success, directed their attention to the encouragement of Manufactures,'' and he argued that much more needed to be done, especially invoking the idea of the dangers of the country remaining dependent on foreign supply.Washington also argued that, ``with reference to individual, or National Welfare, Agriculture is of primary importance,'' and he proposed the creation of institutions for promoting agriculture through ``premiums, and small pecuniary aids, to encourage and assist a spirit of discovery and improvement.''
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- There was and still is a number of differing opinions over the Commerce Clause there is even conflict in the last two paragraphs of Hamilton's statement you quoted -The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this--That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.How do we explain the conflict it appears he believes all is permitted as long as it applies to the general and not the local. then it appears he it to: A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.He then limits the power to those items authorized expressly or BY FAIR IMPLICATION - which again opens Pandora's box and is limitless. I can not recall any other founder that would support this broad interpretation of any clause in the Constitution. In fact most that I recall would take direct issue with the "FAIR IMPLICATION" statement as they all believed if changes or corrections were needed that what Article V was all about.
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- I have been reading again - again Madison explains where we are and maybe even why we are here?I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate
Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense! – Letter to Henry Lee (25 June 1824) James Madison
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- The desire to promote the general welfare through the use of federal funds has always been present and used sparingly until It fell to John Marshall, Chief Justice of the United States from 1801 to 1835, to ensure that the Hamiltonian view was established as our fundamental law. Marshall's 1819 opinion in the case involving the National Bank, {McCulloch v. Maryland,} is a milestone for the confirmation of the national government's exercise of its power to promote the general welfare--and, it is also clear, to carry out its Manifest Destiny as a Continental Republic, ``from sea to shining sea.''
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- Locklook atAlexander Hamilton, Report on Manufactures5 Dec. 1791
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- There appears to be some questions regarding the Necessary and Proper clause and the General Welfare clause; most of the Founders wrote that they applied only to those powers specifically granted to the Federal [central government] in Article I section 8. After much debate among the States the tenth amendment was adopted to clarify the only right given up by the States and the People were those specifically spelled out in Article I section 8 and "all" others [rights] were retained by the States and the People.Now reading the court cases under this light they appear to have been usurpations created by using the British System of Case Law Precedent of Common Law. We do not need case law theory like England as we have a Constitution and they do not. So, using case law precedent to build a case on case would seem to be a usurpation as those prior cases would have modified the Constitution without and amendment. So, In my humble opinion there can be no such thing in America as "SETTLED LAW".At the time, Jefferson disagreed with Marshall's reasoning in this case, saying that if this view of judicial power became accepted, it would be "placing us under the despotism of an oligarchy."[33] Jefferson expanded on this in a letter he wrote some 20 years later to Justice William Johnson, whom he had appointed to the court in 1804.[34]Some legal scholars have questioned the legal reasoning of Marshall's opinion. They argue that Marshall selectively quoted the Judiciary Act of 1789, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction.[35] These scholars argue that there is little connection between the notion of original jurisdiction and the Supreme Court, and note that the Act seems to affirm the Court's power to exercise only appellate jurisdiction.[36]Furthermore, it has been argued that the Supreme Court should have been able to issue the writ on original jurisdiction based on the fact that Article III of the Constitution granted it the right to review on original jurisdiction "all cases affecting … public ministers and consuls," and that James Madison, Secretary of State at the time and defendant of the suit, should have fallen into that category of a "public minister [or] consul."[37]Questions have also frequently been raised about the logic of Marshall's argument for judicial review, for example by Alexander Bickel in his book The Least Dangerous Branch.[38] Bickel argues that Marshall's argument implies an unrealistically mechanical view of jurisprudence, one which suggests that the Court has an absolute duty to strike down every law it finds violative of the Constitution.[citation needed] Under Marshall's conception of the judicial process inMarbury, judges themselves have no independent agency and can never take into account the consequences of their actions when deciding cases.[citation needed]Marbury can also be criticized on grounds that it was improper for the Court to consider any issues beyond jurisdiction. After concluding that the Court lacked jurisdiction in the case, the further review regarding the substantive issues presented was arguably improper.[39] Also, it has been argued that Justice Marshall should have recused himself on the grounds that he was still acting Secretary of State at the time the commissions were to be delivered and it was his brother, James Marshall, who was charged with delivering a number of the commissions.[40]Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of coequal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution's terms. Despite such criticisms of Marbury v. Madison, judicial review has been accepted in the American legal community.McCulloch v. Maryland, 17 U.S. 316 (1819), was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of theSecond Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable to all banks not chartered in Maryland, the Second Bank of the United States was the only out-of-state bank then existing in Maryland, and the law was recognized in the court's opinion as having specifically targeted the U.S. Bank. The Court invoked the Necessary and Proper Clause of the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution's list of express powers, provided those laws are in useful furtherance of the express powers of Congress under the Constitution.This fundamental case established the following two principles:
- The Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government.
- State action may not impede valid constitutional exercises of power by the Federal government.
The opinion was written by Chief Justice John Marshall.
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- I have read all of PH's work - she is quite bright. A couple of her latest works are on subject if anyone cares to go to here site and read them.The problems with semantics and meanings in time, along with the twisting of clauses and amendments to destroy States and individual rights has led me to the conclusion that the States must do their assigned duties to protect the individuals from an oppressive usurping Federal Government. The only remaining power is for the 34 legislatures or better yet would be 38 to write and hold a Article V convention which revokes the 14th [used to force States to do the courts and Fed desires], the 16th which funds the usurping, and the 17th which takes away the power of the State to send 2 Senators that represent the State in the Federal government.WE will find no salvation in either house or in the courts and surly not in the executive office. We must force the Central government back into the Article I section 8 limits and the courts back into the Article III limits.Section 1 - Judicial powersThe judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
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- Mores went away with the Progressive advancement of the secular society in the 1850 - 1990's. Look at the Clinton impeachment it was all about Mores and the left attacked every mention as that reduced the rights of the individual to do what ever they felt best doing as long as it did break any laws -Again, this last week we see this rise to the approval of the extreme left Progressive secular media and political class members in the Weiner matter. if he was a Christen Republican and not a far left Jew, he would be hung to the highest tree and gone by now. By they have zero mores and do not wish to be limited in behavior, private or public by those old ways.
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- That was Hamilton's view and in the end he converted Washington. However, Mr. Hamilton's viewpoint was never embraced by Congress till 1937; and one might argue that it was done under coercion.
This view was one of the chief causes of the of the animosity between Jefferson and Hamilton and ultimately, when Washington sided with Hamilton, the split between Jefferson and Washington.
I find Mr. Madison's writings more informative, learned and insightful than Mr. Hamilton's [as did legislators throughout the 19th and early 20th century who based their understanding of constitutional intent on them].
According to Mr. Hamilton's interpretation there is no limit on congressional authority under 'general welfare' as long as one can argue it serves the whole.
As James Madison explained, the commerce clause was intended to make trade "regular" between the states, primarily to prevent interstate tariff wars. Mr.Madison wrote:
"It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government."
"With respect to the words "general welfare," I have always regarded them asqualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." James Madison
(italics added)
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- I have read much on the FDR usurpations but this might be the best piece I have seen. Thank you for posting it as many will learn what really happened under FDR IMO the wort President for the people that ever served. So many say he was great and saved the country from the depression - most competent economists now say his policies extended and deepened the recession. The extreme left and the Progressives on both sides consider him a hero of the people when he really sold us out to the loss of freedom under the BIG BIG BIGGEST Federal government.
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- This is the case that broke open the damn of usurpation by the SCOTUS that FDR conducted a very successful attack of the Supreme Court and he was in office long enough to appoint many Justices> this gave him unlimited power as like Obama had a huge Democrat Majority that did what ever he asked. I do not agree with Bugler he was the first that usurped - IMO that would have been A. Lincoln.The unemployment compensation provisions of the Social Security Act of 1935 establish a tax imposed on employers. If, however, a state has established an approved unemployment compensation plan, the taxpayer is allowed to credit up to 90% of the federal tax paid to the state unemployment fund. In effect, the Act established a taxing structure designed to induce states to adopt consistent laws for funding and payment of unemployment compensation.The main controversy in Steward was whether the tax coerced the states and whether the tax was within the powers of Congress. Justice Cardozo wrote for a sharply divided Court—one that was in the process of changing its character relative to affirmation of national action for the general welfare:“The question is to be answered whether the expedient adopted has overlept the bounds of power. The assailants of the statute say that its dominant end and aim is to drive the state legislatures under the whip of economic pressure into the enactment of unemployment compensation laws at the bidding of the central government.”The key holding regarding the excise tax of the Act was: “The excise is not void as involving the coercion of the States in contravention of the Tenth Amendment or of restrictions implicit in our federal form of government.” An important part of the rationale was the ruling that even if the excise taxes: “were collected in the hope or expectation that some other and collateral good would be furthered as an incident, that, without more, would not make the act invalid. Sonzinsky v. United States, 300 U.S. 506. This indeed is hardly questioned.”The arguments placed the actions of Congress within its Constitutional power. The Court then established that the tax and the credit in combination are not weapons of coercion that would destroy or impair the autonomy of the states. The first step was:“To draw the line intelligently between duress and inducement there is need to remind ourselves of facts as to the problem of unemployment that are now matters of common knowledge.”After reviewing the distressed condition of the nation’s economy, the Court noted that:“The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. It is too late today for the argument to be heard with tolerance that, in a crisis so extreme, the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare. Cf. United States v. Butler, 297 U.S. 1.”Although not quoted specifically in Steward, the relevant aspect of Butler addressed the constitutional powers of Congress and established that Congress has a “separate and distinct” power to tax and spend that is “not limited by the direct grants of legislative power found in the Constitution.”Directly addressing the contention that the tax is coercive, Justice Cardozo wrote:“The difficulty with the petitioner's contention is that it confuses motive with coercion. “Every tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed.” Sonzinsky v. United States. In like manner every rebate from a tax when conditioned upon conduct is in some measure a temptation. But to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties. ... Nothing in the case suggests the exertion of a power akin to undue influence … the location of the point at which pressure turns into compulsion, and ceases to be inducement, would be a question of degree.”An important issue in a tax not being coercive, satisfied in Steward, is that the conduct to be encouraged or induced accomplish a national end (general welfare) and be related to the tax itself.“It is one thing to impose a tax dependent upon the conduct of the taxpayers, or of the state in which they live, where the conduct to be stimulated or discouraged is unrelated to the fiscal need subserved by the tax in its normal operation, or to any other end legitimately national. … It is quite another thing to say that a tax will be abated upon the doing of an act that will satisfy the fiscal need, the tax and the alternative being approximate equivalents. In such circumstances, if in no others, inducement or persuasion does not go beyond the bounds of power.”And then, finally, Cardozo made explicit the liberty of the states to make agreements with Congress.“The states are at liberty, upon obtaining the consent of Congress, to make agreements with one another. … We find no room for doubt that they may do the like with Congress if the essence of their statehood is maintained without impairment.”Based on all the forgoing arguments, the final judgment was to affirm the lower Court’s decision upholding the constitutionality of the Act. The ruling upholding the act was one of two Social Security Cases that upheld elements of New Deal legislation in 1937.
[edit]The Dissents
The essence of the dissents was that the Social Security Act of 1935 went beyond the powers that were granted to the federal government in the Constitution. Imposing a tax that could be avoided only by contributing to a state unemployment compensation fund was effectively coercing each state to make law creating such a fund.[edit]Justice McReynolds
“That portion of the Social Security legislation here under consideration, I think, exceeds the power granted to Congress. It unduly interferes with the orderly government of the state by her own people and otherwise offends the Federal Constitution. .... [Article 1, Section 8] is not a substantive general power to provide for the welfare of the United States, but is a limitation on the grant of power to raise money by taxes, duties, and imposts. If it were otherwise, all the rest of the Constitution, consisting of carefully enumerated and cautiously guarded grants of specific powers, would have been useless, if not delusive.”[edit]Justice Sutherland, with Van Devanter
“The threat implicit in the present encroachment upon the administrative functions of the states is that greater encroachments, and encroachments upon other functions, will follow.”[edit]Justice Butler
“… the statutory scheme is repugnant to the Tenth Amendment. … The Constitution grants to the United States no power to pay unemployed persons or to require the states to enact laws or to raise or disburse money for that purpose. The provisions in question, if not amounting to coercion in a legal sense, are manifestly designed and intended directly to affect state action in the respects specified. And, if valid as so employed, this 'tax and credit' device may be made effective to enable federal authorities to induce, if not indeed to compel, state enactments for any purpose within the realm of state power and generally to control state administration of state laws.”The dissenters are sometimes known collectively as the Four Horsemen, the consistently conservative members of the Court who opposed the New Deal agenda of President Franklin Delano Roosevelt.[edit]Subsequent Jurisprudence
Steward was part of a set of decisions in which the Court consistently upheld New Deal economic and regulatory legislation. Its key role was the expansion of Congressional authority to the regulation of state activity, and marked the end of Supreme Court attempts to limit Congressional power based on advancement of the general welfare. In fact, Butler, just the year before Steward, was the last case in which the Supreme Court struck down an Act of Congress as beyond the authority granted by the Spending Clause.Steward marked the beginning of the recognition that Congress could use the Spending Clause, under the umbrella of general welfare, to regulate state laws through incentives and encouragement—but not coercion. The national government may induce the states, or tempt them, or seduce them—but not coerce them into passing legislation considered desirable to meet national needs. Before Steward, Congress could regulate only commercial economic activity; after Steward, Congress could regulate the actions of state governments.It is now common for Congress to tie grants-in-aid with requirements and restrictions upon the states, although the practice is still often controversial. In a modern case depending upon the jurisprudence of Steward, the Court held in South Dakota v. Dole, 483 U.S. 203 (1987) that Congress could influence states to raise the minimum drinking age to 21, by threatening to withhold funds for federal highways. In her dissent, Justice O'Connor stated:“When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one. But it is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State's social and economic life .... Indeed, if the rule were otherwise, the Congress could effectively regulate almost any area of a State's social, political, or economic life.”She later approved of and quoted Butler:“If the spending power is to be limited only by Congress' notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives "power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed." … This, of course, as Butler held, was not the Framers' plan and it is not the meaning of the Spending Clause.”[edit]
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