Volume 60 Issue 3 Dickinson Law Review - Volume 60, 1955-1956 3-1-1956 Limited Government and the Welfare Clause Joseph L. Call Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Joseph L. Call, Limited Government and the Welfare Clause, 60 DICK. L. REV. 197 (1956). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol60/iss3/1 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. DICKINSON LAW REVIEW LIMITED GOVERNMENT AND THE WELFARE CLAUSE By HON. JOSEPH L. CALL* The construction of the U. S. Constitution has at all times, since the genesis of the Republic, been represented by two opposing fields of thought. Jefferson, an individualist, an advocate of states' rights, a disciple of John Locke' and an avowed opponent of centralization of governmental power advocated at all times a rigid construction. On the other hand, Hamilton, a vigorous advo- cate of strong centralized government, advocated consequently a loose construc- tion and construction by interpolation. Each had his own adherents and follow- ers, but so profund were the differences on this basic premise that there resulted, as the aftermath of this struggle, two parties-the Jeffersonian or the Demo- cratic-Republican Party, and the Federalist Party. Briefly stated, the judicial philosophy of nationalism or strong centralized government came to the front. In 1803, acting under the authority given it in Article III, Sections 1 and 2 of the Federal Constitution, in the case of Marbury v. Madison2 the principle of judicial review was established, thus placing the court "over the Constitution." 3 The doctrine was extended in Martin v. Hunters Lessee4 in which the court held that final decisions of the state supreme courts on federal questions were subject to review by the United States Supreme Court. In McCulloch v. Maryland5 in a decision of monumental importance, the court read into the constitution the doctrine of implied powers, and the continued adoption of this judicial synthesis in Gibbons v. Ogden6 so transcended the com- merce clause as to open the door to construction which now encompasses the entire agricultural and industrial life of the states.7 Coming now to the controversial "General Welfare Clause," we note that it is to be found as a part of Article I, Section 8, Subdivision I of the United States Constitution, which reads as follows: * Judge, Municipal Court Los Angeles Judicial District, Presiding Judge, 1945. 1 The Declaration of Independence was mostly the work of Thomas Jefferson, although Adams and Franklin suggested minor alterations. The salient features were borrowed from the philos- ophy and theory of government as expressed in John Locke's second treatise: JOHN LOCKE, Two TREATISES ON GOVERNMENT (1694). 2 1 Cranch 137 (1803). 8 EDWIN S. CORWIN, COURT OVER CONSTITUTION (1938). 4 1 Wheat. 304 (1816). 5 4 Wheat. 316 (1819). 6 9 Wheat. 31 (1824). 7 Wickard v. Fillburn, 317 U.S. 111 (1942); Mulford v. Smith, 309 U.S. 38 (1939); United States v. Darby, 312 U.S. 100 (1941); Kirschbaum v. Walling, 316 U.S. 517 (1942). DICKINSON LAW REVIEWO VOL. 6o "SECTION 8. The Congress shall have the power 1. To lay and col- lect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." (Emphasis added.) This clause has agitated and proved to be one of the most provocative clauses of our Constitution, its proper interpretation being one of the basic issues between Jefferson and Madison and the Democratic-Republican Party and Hamilton and the Federalist Party, the crucial point again striking at the fundamental premise of limited government through the question of "loose" or "strict" construction of the Constitution. These two constructions may be stated as follows: (1) The Jefferson or Madison interpretation, which was that the power "to lay and collect taxes . ., to pay the debts and provide for the common de- fense and general welfare of the United States; . ." must be confined as de- scriptive of and limited by the succeeding specific enumeration of powers to be found in the succeeding subdivisions of Section 8. (2) The construction of Mr. Justice Story, which is that from the terms of the grant (supra), Congress has a substantive power to tax and appropriate, limited only by the requirements that it shall be exercised to provide for the common defense and general welfare of the United States, and is not confined to, or limited by the subsequently enumerated specific grants of power to Congress. Throughout the years, however, the "General Welfare Clause" has withstood the challenge of judicial interpretation, or at least has not been the subject of judicial consideration. However, in 1936 in the case of United States v. Butler,8 the court did announce its conclusions on this clause. To say that the holding of the Supreme ,Court approving the interpretation of Mr. Justice Story has "softened by a quasi" 9 the doctrines of limited government is to temper the seriousness of the court challenge with restraint. In analyzing the question as to which construction is correct, it is necessary to inquire into the circumstances surrounding its adoption, the opinions of those who participated in its early analysis, consideration and debate, and also the opinions of contemporaries who later discussed constructions of the clause.10 In the course of its proceedings the Federal Convention adopted on August 16, after recommendation of the Committee of Detail, the following clause: 8 297 U.S. 1 (1936). The Supreme Court in this case states (p. 66) that Mr. Justice Story in his commentaries espouses the Hamiltonian position. However, an analysis of the conclusions of Story and Hamilton would indicate that Hamilton advocated a much looser construction than did Mr. Justice Story. 9 The expression of Mr. Justice Holmes, dissenting in Springer v. Government of the Philip- pine Islands, 277 U.S. 189 (1928). 10 In this connection the discussion of the background at the Federal Constitution by James Madison in a letter to Andrew Stevenson (Nov. 1830) is most instructive and enlightening. See WRITINGS OF JAMES MADISON, Vol. LV, p. 122 (1865), LIMITED GOVERNMENT AND THE WELFARE CLAUSE "The legislature of the United States shall have the power to lay and collect taxes, duties, imposts and excises."" However, after this adoption by the Convention great solicitation and de- bate developed in the Convention about the power of Congress to pay (a) the debts of the Revolutionary War, and (b) the necessity and propriety of the United States assuming and paying all of the debts of the states. In connection with the payment of the debts of the states it was forcibly argued in the Convention that inasmuch as Congress was to appropriate the taxes on imports, and inasmuch as that was one of the chief sources of income to the states, the Federal Congress should thereupon assume payment of the state obligations. Consequently two motions were made (1) that Congress have the power "to secure the payment of the public debt"' 2 and (2) that a special committee be appointed, one member from each state to "consider the necessity and expediency of the United States assuming all the state debts. '' i Obviously, it was contended in the Convention that there was no obligation on the Federal Government to pay the debts of the states and it was debatable whether or not under the taxing power as proposed, there was a right of the Federal Government to pay the debts of the Confederation heretofore incurred. On August 19 the special committee was appointed, and on August 21 the committee recommended to the Federal Convention the adoption of the follow- ing power: "The legislature of the United States shall have power to fulfill the engagements which have been entered into by Congress, and to dis- charge as well the debts of the United States as the debts incurred by the several states during the late war, for the common defense and the gen- eral welfare." 14 (Emphasis added). Thus it is to be seen that there is proposed for ratification to the Federal Convention power of Congress to: (1) Fulfill the engagements which have been entered into by Congress; (2) To discharge as well the debts of the U. S.; (3) To discharge the debts incurred by the several states during the late war; (4) Said debts incurred for the common defense and general welfare. It is therefore apparent that the phrase "for the common defense and gen- eral welfare" appears at this point for the first time before the Convention and had definite and sole reference to the payment of the obligations of the Confederacy heretofore incurred during the Revolutionary War, and the obliga- 11 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION, Vol. I, p. 308 (1911) (here- inafter cited as FARRAND). 12 II FARRAND 325, 326. 18 II FARRAND 327. 14 II FARRAND 352. 200 DICKINSON LAW REVIEWO VOL. 60 tions of the states incurred for the common defense and general welfare during the late war. The debates in the Convention thereafter reflect that the members were concerned that Congress might still repudiate the old debts by failure to pay the same and consequently the following substitute motion was made and carried in lieu of the recommendation of the special committee: "The legislature shall discharge the debts and fulfill the en- gagements of the United States.' (Emphasis added).