Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“It is the fundamental theory of all the more recent American law...that the average citizen is half-witted, and hence not to be trusted to either his own devices or his own thoughts.”     H. L. Mencken

July 29, 2009

Where’s The Authority ?

by Doug Mataconis

Walter Williams asks a question that, unfortunately, nobody in power bothers to ask anymore:

A president has no power to raise or lower taxes. He can propose tax measures or veto them, but since Congress can ignore presidential proposals and override a presidential veto, it has the ultimate taxing power.

The same principle applies to spending. A president cannot spend a dime that Congress does not first appropriate. As such, presidents cannot be held responsible for budget deficits or surpluses. That means that credit for a budget surplus or blame for budget deficits rests on the congressional majority at the time.

Thinking about today’s massive deficits, we might ask: Where in the U.S. Constitution is Congress given the authority to do anything about the economy?

Or, more specifically, where is the Federal Government given the authority to bailout private lending institutions, bailout failing auto companies, and take over the health care industries ?

I’ve searched high and low in Article I, Section 8 and I sure as heck can’t find it.

Of course, I’m probably not using the modern translation.

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  1. The Constitution is almost totally ignored by our government. The problem is that the politicians don’t fear the people anymore. Jefferson said, “When the government fears the people, there is liberty. When the people fear the government, there is tyranny.” The Constitution is the legal framework that supports our liberty but since the government no longer fears the people it is not as compelled to abide by it. If we could find a way to re-educate the electorate then maybe we could instill some fear into the politicians in D.C. by voting them out when they don’t follow the Constitution. What happens when uninformed/stupid people vote? The liberal wins.

    Comment by Forgotten Liberty — July 29, 2009 @ 5:51 am
  2. I think it’s in an emanation or penumbra somewhere. That’s what the Supreme Court told me.

    Comment by Brad Warbiany — July 29, 2009 @ 7:17 am
  3. The People need to get off their collective rumps and start flexing on the govt. Put the fear of the masses back into ol Uncle Sambo

    Comment by Red — July 29, 2009 @ 7:52 am
  4. He cites James Madison’s and Thomas Jefferson’s interpretation of the General Welfare Clause. They are credible, but their logic implies the words “General Welare” are superfluous, and we cannot treat any words in the constitution as if they are superfluous.

    Another interpretation by one of our founders, Alexander Hamilton, in Report on Manufacturers, says that the General Welfare Clause grants a distinct power to Congress to use its taxing and spending powers in areas it was not given direct regulatory control. United States v. Butler and Helvering v. Davis upheld Hamilton’s interpretation. They agreed it gives Congress a distinct power to tax and spend for the national welfare (as opposed to local), or the general welfare, not the welfare of particular parties. The mistake they made was in Helvering, when they granted deference to Congress to determine what the general welfare is.

    Comment by Ben — July 29, 2009 @ 1:00 pm
  5. Ben,

    I assume the quotes you’re referencing are:

    James Madison: “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.”

    And: “With respect to the two words ‘general welfare,’ I have always regarded them as qualified 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.”

    Thomas Jefferson: “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”

    Thanks for the Hamilton reference, I hadn’t read that one yet.

    For me, Hamilton’s view begs the question: If “general welfare” means anything a Congress concludes might satisfy that vague phrase (even if constrained to national issues), why have enumerated powers at all? Why have the rule of law? Why not simply call them Nobles and be done with it?

    I know Hamilton tended to favor tighter central control, and even monarchy. I guess he’d be right at home with the Obama administration.

    Comment by Akston — July 29, 2009 @ 3:11 pm
  6. Akston,
    To be clear, he didn’t say Congress had the authority to determine what the General Welfare is, he just said that clause involved a distinct power

    Comment by Ben — July 29, 2009 @ 3:37 pm
  7. Hamilton was a douche.

    Comment by Brad Warbiany — July 29, 2009 @ 3:47 pm
  8. Ben,

    Thanks for the clarification.


    The more I read about Hamilton, the more I tend to agree.

    And my earlier post should have included that Hamilton would have been at home in any number of recent administrations.

    Comment by Akston — July 29, 2009 @ 4:11 pm
  9. Regardless of what Hamilton or any of them said, it’s not proper to read the constitution as if any word isn’t meant to have an effect. Otherwise, we are inviting the same lack of restraint “activists” are called out for. Congress has the power to tax and spend for the general welfare, not for the welfare of any individual area or party. I believe earmarks are unconstitutional for this reason. If it was synonymous with their enumerated powers, it would be redundant with the Necessary and Proper Clause, among other things. The Taxing and Spending Clause is its own enumerated power

    Comment by Ben — July 29, 2009 @ 6:13 pm

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