# Constitutional Article?? **URL:** \ **Category:** Great Debates\ **Created:** [July 27, 2009, 3:36pm UTC](https://boards.straightdope.com/t/constitutional-article/504435 "2009-07-27T15:36:44Z")\ **Posts on this page:** 18\ **Page:** 2
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [July 28, 2009, 1:49am UTC](https://boards.straightdope.com/t/constitutional-article/504435/21 "2009-07-28T01:49:05Z")
Here’s [Hamilton on the subject](http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html), seeing as it was brought up. His two qualifiers seem to be: 1. It must be something which is generic to the whole nation 2. Money raised for a particular general welfare program must be used for that and only that. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [July 28, 2009, 2:08am UTC](https://boards.straightdope.com/t/constitutional-article/504435/22 "2009-07-28T02:08:00Z")
> [@Kimmy\_Gibbler](#): > > As the Court observed in [_United States v. Butler_](http://en.wikipedia.org/wiki/United_States_v._Butler): > > Thus this broad power allows Congress to fill a rôle that the states cannot fill, to provide a coördinated, concerted, _national_ organization to solve problems that transcend state borders and consequently state powers and abilities. It should be noted that _Butler_ was decided during the metamorphosis of the Court from being a supporter of limited federal powers to a supporter of broad federal powers. The fact that this country decided in the face of the Great Depression that the clause had an expansive meaning is not in and of itself a reason to assert that it MUST have such meaning. Madison’s opinion on the subject isn’t necessarily dispositive either, but at least it has the benefit of being contemporary with the document. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [July 28, 2009, 2:14am UTC](https://boards.straightdope.com/t/constitutional-article/504435/23 "2009-07-28T02:14:48Z")
> [@DSYoungEsq](#): > > Madison’s opinion on the subject isn’t necessarily dispositive either, but at least it has the benefit of being contemporary with the document. And _Butler_ is the more recent opinion. So? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [July 28, 2009, 2:33am UTC](https://boards.straightdope.com/t/constitutional-article/504435/24 "2009-07-28T02:33:54Z")
> [@Zakalwe](#): > > And _Butler_ is the more recent opinion. > So? This ignores my point. At the time Butler was decided, the Democrats were pushing an expanded federal government as an answer to the problems of the nation. The Supreme Court initially resisted this concept, but caved under pressure from popular opinion (and eventually, the threat of a “court-packing” scheme). The opinion in Butler was a change in how the clause was interpreted. So for someone who views the Constitution not as a chageable document, malleable to meet the “needs” of the moment, the view of someone like Madison has more weight than the view of a Court which was essentially pressured into accepting a majority tyrrany. Not saying that’s how _I_ view it, mind. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [July 28, 2009, 3:26am UTC](https://boards.straightdope.com/t/constitutional-article/504435/25 "2009-07-28T03:26:15Z")
> [@DSYoungEsq](#): > > It should be noted that _Butler_ was decided during the metamorphosis of the Court from being a supporter of limited federal powers to a supporter of broad federal powers. The fact that this country decided in the face of the Great Depression that the clause had an expansive meaning is not in and of itself a reason to assert that it MUST have such meaning. Madison’s opinion on the subject isn’t necessarily dispositive either, but at least it has the benefit of being contemporary with the document. Well, Justice Story also bought into the Hamiltonian view, so it wasn’t a completely novel creation of the Depression-era Switch In Time. I’m not saying Madison’s opinion should be binned, only that it is hardly dispositive on the question, even if you are firmly in the originalist camp. Even less so if you think that we a form of government we moderns have had for nearly 100 years now and that continues to win at the ballot box might be enough to overpower a social compact influenced theory of constitutional interpretation. I think we agree on these points though. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [July 28, 2009, 3:28am UTC](https://boards.straightdope.com/t/constitutional-article/504435/26 "2009-07-28T03:28:58Z")
The Supreme Court routinely cycles between deciding there are certain limits on Congressional authority and deciding that there are none. Given that no one has ever overturned Medicare, Medicaid, and ERISA, though, whatever healthcare reform that is eventually passed will unquestionably be constitutional to the Court, no matter what phase of the cycle it is in. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 28, 2009, 4:31am UTC](https://boards.straightdope.com/t/constitutional-article/504435/27 "2009-07-28T04:31:36Z")
> [@Kimmy\_Gibbler](#): > > Even less so if you think that we a form of government we moderns have had for nearly 100 years now and that continues to win at the ballot box might be enough to overpower a social compact influenced theory of constitutional interpretation. I hope in this day and age we can all agree, at least, that Edmund Burke was flat dead wrong in positing a binding “social compact” between the present generation, their ancestors and their descendants. **We owe our ancestors nothing.** Our descendants, perhaps, but not our ancestors. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 28, 2009, 5:52am UTC](https://boards.straightdope.com/t/constitutional-article/504435/28 "2009-07-28T05:52:42Z")
> [@](#): > > Yeah, I guess we’ve, long ago, crossed the Rubicon. It’s been downhill ever since the Supreme Court claimed that the Second Amendment covered revolvers. Clearly the Original Intent of the Founding Fathers was that the Second Amendment protected flintlock rifles - who did later generations think they were claiming that “arms” had an evolving meaning? It’s obvious the Founding Fathers intended their interpretation of the Constitution to bind future generations - if they had wanted us to change the Constitution they would have including some means of amending it. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [July 28, 2009, 6:15am UTC](https://boards.straightdope.com/t/constitutional-article/504435/29 "2009-07-28T06:15:16Z")
I wonder if James Madison could have imagined the corporate greed on one side and the lack of access to basic health care and medicines on the other that we have in this country. Could he envision one dose of medication that costs thousands of dollars? Would he ever think that Americans (including the poor) would have to pay more for certain pills so that Europeans (including the rich) could pay less for the same pill? Would he have dreamed of a system where someone other than the doctor decides which medicine you will get to take? If he could have, I think he might have been willing to unsteeple his hands for a bit and sit up. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [July 28, 2009, 7:07am UTC](https://boards.straightdope.com/t/constitutional-article/504435/30 "2009-07-28T07:07:59Z")
> [@Zoe](#): > > I wonder if James Madison could have imagined the corporate greed on one side and the lack of access to basic health care and medicines on the other that we have in this country. In his era, greed was nothing new. And health care was very much more primitive for everyone. > [@](#): > > Could he envision one dose of medication that costs thousands of dollars? I’m sure there were very expensive substances in those days. > [@](#): > > Would he ever think that Americans (including the poor) would have to pay more for certain pills so that Europeans (including the rich) could pay less for the same pill? Do you mean directly or after taxes are considered? > [@](#): > > Would he have dreamed of a system where someone other than the doctor decides which medicine you will get to take? If he could have, I think he might have been willing to unsteeple his hands for a bit and sit up. Now, that’s the only good point you make. ---
**Author:** ![Frostillicus](https://avatars.discourse-cdn.com/v4/letter/f/e9bcb4/32.png) [@Frostillicus](https://boards.straightdope.com/u/Frostillicus)\ **Post date:** [July 28, 2009, 1:03pm UTC](https://boards.straightdope.com/t/constitutional-article/504435/31 "2009-07-28T13:03:13Z")
So this is the latest opposition argument? Health-care reform is unconstitutional? Good luck with that one. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 28, 2009, 1:20pm UTC](https://boards.straightdope.com/t/constitutional-article/504435/32 "2009-07-28T13:20:47Z")
> [@](#): > > So this is the latest opposition argument? Health-care reform is unconstitutional? Good luck with that one. No, that’s been around awhile. This week’s opposition argument is that liberalmedia made fun of Palin for resigning her job but didn’t say anything when Obama resigned his job. Obvious bias because the two situations are otherwise completely the same. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 28, 2009, 2:45pm UTC](https://boards.straightdope.com/t/constitutional-article/504435/33 "2009-07-28T14:45:05Z")
Jefferson on this: [QUOTE=Jefferson’s Opinon on the Bank] To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please. It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect [/QUOTE] He makes an excellent point and I said it above. If you are going to argue that Congress has a particular power because it is in the “general welfare” of the country, then there is absolutely no limitation on its power, no? ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [July 28, 2009, 2:49pm UTC](https://boards.straightdope.com/t/constitutional-article/504435/34 "2009-07-28T14:49:40Z")
> [@jtgain](#): > > He makes an excellent point and I said it above. If you are going to argue that Congress has a particular power because it is in the “general welfare” of the country, then there is absolutely no limitation on its power, no? I’d say it just gives it an unlimited power to ‘spend money’ for the general welfare, but there are plenty of things that involve more then spending money. Which is presumably why federal regulations are justified by the commerce clause, regulations may be for the general welfare, but they involve more then just spending money. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [July 29, 2009, 2:04am UTC](https://boards.straightdope.com/t/constitutional-article/504435/35 "2009-07-29T02:04:44Z")
> [@DSYoungEsq](#): > > It should be noted that _Butler_ was decided during the metamorphosis of the Court from being a supporter of limited federal powers to a supporter of broad federal powers. The fact that this country decided in the face of the Great Depression that the clause had an expansive meaning is not in and of itself a reason to assert that it MUST have such meaning. Madison’s opinion on the subject isn’t necessarily dispositive either, but at least it has the benefit of being contemporary with the document. The metamorphosis occurred for no reason than to save their jobs. Notice the expansion occurred after the Court Packing Scheme. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 29, 2009, 3:35am UTC](https://boards.straightdope.com/t/constitutional-article/504435/36 "2009-07-29T03:35:24Z")
> [@Quartz](#): > > I’m sure there were very expensive substances in those days. Oil of Borage at nine farthings a pennyweight?! That apotheckary is a demned usurer! :mad: ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 29, 2009, 4:37am UTC](https://boards.straightdope.com/t/constitutional-article/504435/37 "2009-07-29T04:37:05Z")
> [@Saint\_Cad](#): > > The metamorphosis occurred for no reason than to save their jobs. Notice the expansion occurred after the Court Packing Scheme. Right. Because nobody does anything out of a sense of moral propriety, simply because it was the right thing to do. (By the way, how much were you paid to express that opinion? Because obviously if SCOTUS justices make their dsecisions for venal reasons, even despite their oaths, it must be true that you too post things, not out of a sense of their rightness, but because you were paid to do so. So how much do you cost?) ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [July 29, 2009, 8:34pm UTC](https://boards.straightdope.com/t/constitutional-article/504435/38 "2009-07-29T20:34:21Z")
It’s worth noting that neither Jefferson’s or Madison’s view of the Constitution and federal power were adopted wholeheartedly by Congress or the Marshall Court. Jefferson also opposed judicial review and anything above a minimalist reading of the Necessary and Proper Clause. In fact, in addition to the Taxing and Spending Clauses argument quoted above, he also argued against the Necessary and Proper Clause as justification for the Bank of the United States: > [@](#): > > "The second general phrase is, ‘to make all laws necessary and proper for carrying into execution the enumerated powers.’ But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase. It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient’ for effecting [sic] the enumerated powers.” James Madison was also opposed to the Bank of the U.S., and wasn’t crazy about judicial review of a state’s laws. This brought both Madison and Jefferson into opposition with the decision in _McCulloch v. Maryland_; Madison because he thought it upset the balance between state and federal government, and Jefferson because he opposed judicial review altogether and thought the Necessary and Proper Clause meant “absolutely necessary.” Their views notwithstanding, _McCulloch v. Maryland_ is now one of the cornerstones of federalism to the degree that it’s difficult to envision what the U.S. would look otherwise. Jefferson and Madison were great thinkers, but neither one is the last word in Constitutional interpretation. [Previous page](https://boards.straightdope.com/t/constitutional-article/504435.md?page=1)