The Constitution: Four Disputed Clauses

0:00Today we're talking about the Constitution and obviously it's a gigantic topic. So the way I've chosen to handle it is to really direct our attention to four areas of the Constitution that have been the source of quite a bit of controversy over the years. These are really, really these three are the areas that are the most contested. But I add the War Powers issue because it's of current-day relevance and because it came up last week and I pledged that I would say something about it. So I want to cover these four things in this order. Without really giving too much background into the Constitutional Convention and the view that the previous document, the Articles of Confederation, had certain difficulties and shortcomings, that may be common knowledge, maybe not.

0:48It's briefly discussed in my book, but what I'm doing, as I say, What I'm doing, as I say, is mainly trying to focus in, focus our discussion on specific things rather than trying to do a sweeping overview of everything. So I'm going to take for granted that you sort of followed the discussion up to this point that as of 1787 there is a U.S. Constitution drafted and that that document is then submitted to the states to be ratified and by 1788 the requisite nine states have done so and by 1790 all the original 13 states have ratified it. But as I say, I want to focus on four clauses in particular whose interpretation has been the source of controversy and continues to be the source of controversy.

1:33Every time there's a nominee to the Supreme Court, everybody wants to know where does he stand on these particular clauses. Particularly the Commerce Clause. That's the one that comes up most often when somebody is being confirmed to the Supreme Court. in Court, What's Your View of the Commerce Clause, and you wind up getting into fairly technical discussions. Well let's start with this issue of war powers, and particularly the question of how are the powers involved in the prosecution of war apportioned among the Congress as versus the President. Now what I suggest in my little section on this, which is at the end of my Constitution Chapter, is that the President does not actually have under the Constitution the kind of expansive powers that it's taken for granted today that he has, that he was not intended to have these powers. Article 2, Section 2 of the Constitution refers to the President as the Commander-in-Chief of the Army and Navy of the United States. But we need to understand what that means.

2:38What does it mean for him to be the Commander-in-Chief? As I indicated briefly last time, what that What that meant is that the president directs a war once it has been declared. This is because of the inconvenience of having hundreds of congressmen trying to pick out targets. Could you imagine how that would go? So the idea is that we need to have this responsibility in effect monopolized by the executive branch. But that's once the war has been declared. It does not mean the president himself has the power to declare war because Article 1, Section 8 of the Constitution declares that the Congress has the power to declare war. Now, I also indicated very briefly last time that the framers of the Constitution distinguish between a power to declare war and a power to make war.

3:24The President is deprived of the power to declare war. That power is reposed in the Congress. But he is not strictly deprived under the Constitution of the power to make war. What's meant by that is that if there were some sudden surprise attack on the United States territory, the president could repel that attack immediately without consulting Congress. But in terms of initiating a war under any other types of circumstances, the president would have to go to Congress for a declaration of war. And it's interesting to note, by the way, of course, that in the case of World War II, where there actually was an attack on American territory, When there was that attack on Pearl Harbor, even in that case, President Roosevelt went to Congress looking for a declaration of war, since he was not interested in simply repelling the one attack.

4:14He wanted to actually go on the offensive and declare a full-scale war. So he got the consent of Congress for that. Well, you'll note in my book, so I don't want to repeat myself too much, just how few powers related to foreign policy the President was given on his own. A lot of the powers are given to Congress or are given to Congress and the President jointly. But in terms of powers that are granted to the President exclusively, we see only two relating to foreign affairs. His being Commander-in-Chief of the Armed Forces, as we've already seen, and the power to receive ambassadors, which is not a particularly glamorous power. And I also note in the Constitution chapter that the framers of the Constitution explicitly noted that they had no desire to model the American government on the British one.

5:01And they pointed out that in the case of the British government, the monarch had the power to declare war. And we don't believe that that is a good model on which to base a free society. James Madison, who is sometimes rightly or wrongly called the father of the Constitution, wrote to Thomas Jefferson as follows. He said, The Constitution supposes what the history of all governments demonstrates, that the executive is the branch of power most interested in war and most prone to it. It has accordingly, with studied care, vested the question of war in the legislature. Elsewhere, Madison remarked, it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war.

5:46Hence, it is the practice of all states in proportion as they are free to disarm this propensity of its influence. At the Constitutional Convention itself, as the document was being drafted, Piers Butler was for vesting the power to declare war in the President, who he said will have all the requisite qualities and will not make war except when the nation will support it. That motion did not even receive a second. At the Pennsylvania Ratifying Convention, James Wilson assured the delegates as follows that this system will not hurry us into war. It is calculated to guard against it. It will not be in the power of a single man or a single body of men to involve us in such distress, for the important power of declaring war is vested in the legislature at large.

6:34This declaration must be made with the concurrence of the House of Representatives. From this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war. Alexander Hamilton, writing in the Federalist Papers, which were written as a series of articles to persuade New York to ratify, Hamilton explained that the President's authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces as first general and admiral of the Confederacy, while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies, all which by the Constitution under consideration would appertain to the legislature.

7:22And finally Abraham Lincoln, who obviously was not at the Constitutional Convention, but nevertheless made an interesting observation about what Article 2, Section 2 should mean. Lincoln said this, Allow the president to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. It is funny to see if you can fix any limit to his power in this respect after you have given him so much as you propose. If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, I see no probability of the British invading us, but he will say to you, be silent. I see it if you don't.

8:13The provision of the Constitution, this is still Lincoln, giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view, he's speaking with an antagonist, destroys the whole matter and places our president where kings have always stood. John Bassett Moore was a great authority on international law who among other credentials occupied the first professorship of international law at Columbia University.

8:59And he said in the early 20th century, There can hardly be room for doubt that the framers of the Constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace. In the history of the early republic, in terms of presidential war powers, which unfortunately we don't have the time to do, but if you're interested, I can link you to an article I've written on this subject, we will find that in the history of the early republic, presidents consistently deferring to Congress in matters of peace and war.

9:47Even in cases where some have alleged that the presidents were active, sometimes in the 20th century, looking for precedents to support the power of the president to send troops anywhere he wants, You will find some controversialists who will say, well, the presidents have always done this in the Quasi-War with France in the late 1790s, in Indian battles, in the battles with the Barbary Pirates in North Africa. It's alleged that the presidents acted on their own. I've shown in a long article I wrote, which will also appear in my next book in the spring, These are not serious examples. We can talk about that in the discussion if you like. But the presidents were extremely deferential toward Congress in the early republic and pretty much all the way up through 1950.

10:36Well, I also mentioned briefly at the end of last time that it's very common to hear it alleged that the president has in fact hundreds of times before 1950, hundreds of Well, I suggested last time that these hundreds of examples are really not particularly impressive historically, and I'd like to give some evidence of that claim. I'm going to skip, again, the historical stuff. We just don't have time for it. I want to stick strictly to the Constitution. For instance, we have this claim, at the time of the Korean War, a number of congressmen came forth with a statement saying, History will show that on more than 100 occasions in the life of this republic, the president as commander-in-chief has ordered the fleet or the troops to do certain things which involve the risk of war without getting the consent of congress.

11:37The State Department in 1966 said, Since the Constitution was adopted, there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior Congressional authorization. Well, Edward S. Corwin, who was one of the great Presidential scholars of the 20th century, pointed out that this lengthy list of alleged precedents, over 100 or 125, 25, consisted mainly of fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like. Well, that is not quite the same thing as, again, sending a million Americans halfway across the world to overthrow a foreign government by force. I might also mention, by the way, sorry I overlooked this, but I I might also make brief mention as an interesting example of how presidential war powers were conceived of in the 19th century, the great example of the Mexican War, just briefly.

12:411846 to 1848 is the war with Mexico. President James Paul called for war on Mexico after announcing to Congress that Mexico had shed American blood upon American soil. American troops had been fired upon. Congress, upon hearing this, voted overwhelmingly for war. And then, as the war progressed, a congressman, an obscure congressman at that time, named Abraham Lincoln, from Illinois, introduced what he called the spot resolution. He wanted to know on what spot exactly were Americans fired. Was it in fact on indisputably American soil? Or were they fired upon in fact in precisely the area that was disputed with Mexico, the area between the Nueces and Rio Grande rivers?

13:27Well, of course, it was in the disputed area, which was a fact that President Polk had neglected to disclose at the time of urging a declaration of war. And so, Senator John Middleton Clayton wondered, I do not see on what principle it can be shown that the President, without consulting Congress and obtaining its sanction for the procedure, has a right to send an army to take up a position where, as it must have been foreseen, the inevitable consequence would be war. What were these troops doing down there in the first place? In 1848 Congress voted to censure President Polk, arguing the President had abused his power. The war resolution said, the war censure resolution said that the President had unnecessarily and unconstitutionally begun the war.

14:19So that's my overview of this war powers matter. What I want to suggest is that the original intent is quite clear that the President has to get the consent of Congress in such matters. The second area that I'd like to cover involves something called the Commerce Clause. Article 1, Section 8, Clause 3 of the Constitution grants Congress the power to, and these are the words of the Constitution, regulate commerce with foreign nations and among the several states and with the Indian tribes. Now, so much of the federal government's power today rests upon this particular clause and its interpretation. At one time this clause was interpreted very, very narrowly, as we'll see. Today it's been interpreted extremely broadly, which is why it always comes up, or very often comes up, when proposed additions to the Supreme Court are nominated. People want to know where they stand on this clause.

15:16Well, it's important to look at what do these words mean? What does the word commerce mean in the 18th century? What was meant by this clause? What did the drafters think they were doing with this clause? Now we have in the clause the phrase in particular that Congress has the power to regulate commerce and the real sticking point here isn't the part about the foreign nations or the Indian tribes. It is regulating commerce among the several states. What does it mean to regulate commerce among the several states? What did the word commerce mean? Well, some people have argued that the word commerce had a very narrow meaning. The commerce was meant to mean only trade or exchange. That's what commerce was, that it was just a synonym for trade or exchange. Others have suggested that the word had a broader meaning, that commerce also extended to manufacturing, because manufacturing involves the production of things that are subsequently traded or exchanged.

16:14Still others have suggested an even broader definition of the word commerce to include all gainful activity whatsoever. Well, it matters which one of these is the correct definition because if Congress has the power to regulate all gainful activity whatsoever that is much, much more power than simply to say it has the power to regulate trade or exchange among the several states. So what does it in fact, what was it intended to mean? Well, it turns out that it is impossible to find an example of any reference to the word commerce at the Constitutional Convention in which it clearly refers to anything other than mere trade. In the Federalist papers, the word is never used in the 63 times it appears in a way that clearly refers to anything other than trade or exchange.

17:04So it seems that on the basis of this textual evidence, the narrow interpretation argument has a tremendous amount to recommend it. In fact, James Madison later observed, and I'm quoting Madison, if in citing the Constitution the word trade was put in the place of commerce, the word foreign made it synonymous with commerce. Trade and commerce are in fact used indiscriminately, both in books and in conversation. Randy Barnett of Boston University Law School said recently, about ten years ago, Having examined every use of the term commerce that appears in the reports of the state ratifying conventions, I found that the term was uniformly used to refer to trade or exchange rather than all gainful activity.

17:52So if commerce refers then to trade or exchange, what does among the states mean? The Federal Government has the power to regulate commerce among the states. What does among the states mean? The scholarly consensus holds that among the states meant that it could regulate commerce that occurs between one state and another, sensibly enough. Among the states involves commerce involving one state with another. It does not mean that the Federal Government can regulate commerce that occurs entirely within one state or commerce that simply concerns or has effects on another state. The understanding was that Congress has the power to regulate commerce that occurs between states.

18:39Now, Thomas Jefferson was only repeating the intentions of the framers of the Constitution when he explained that the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a state, which remains exclusively with its own legislature, but to its external commerce only. That is to say, its commerce with another state or with foreign nations or with the Indian tribes. Likewise, Madison wrote that among the several states, this phrase, grew out of the abuses of the power by the importing states in taxing the non-importing. And here's the key, 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.

19:27So in other words, the clause was meant to provide for a giant free trade zone throughout the United States and to prevent the obstruction of commerce by the states in the form of discriminatory taxes against the goods of other states. Well, a fateful decision, Supreme Court decision was rendered in 1824, called Gibbons vs. Ogden, by Chief Justice John Marshall. John Marshall introduced the idea that the Commerce Clause, in fact, not only involves the regulation of commerce among states, but also the regulation of commerce that affects other states, that occurs entirely within one state but affects other states.

20:12Well, Raoul Berger, who was a Harvard professor of constitutional law for many years, describes this as a naked assertion unaccompanied by legislative history or precedential explanation. That's a very fancy way of saying that it's a lot of, I don't know, I don't want to say a bad word, but it's just a lot of dog doo-doo, I guess, this claim. Because as Madison and Jefferson said, technically, in a certain cosmic sense, everything affects everything else. So if you begin to say that the federal government can regulate commerce that affects other states, well then, you know, obviously they can interpret it to allow for any intervention in the economy. In the 20th century, this idea was revised as to say that the federal government could regulate commerce that has a substantial effect on other states rather than just simply an effect.

21:06But again, there's no support for this in any of the Constitutional Convention, the ratifying conventions, nothing. There's no support for that. Well, by the time of the 1940s, early 1940s, the Commerce Clause was being cited to justify Federal powers that the framers could scarcely have believed. I give an example in a later chapter of a famous case from 1942 called Wickard v. Filburn. This case involved a farmer who was growing wheat on his own land for his own use. and this was described as interstate commerce and therefore subject to federal regulation and this farmer was wondering how could you possibly describe it as interstate commerce if I grow wheat on my own land for the use of myself and my animals how could that be trade among states, right? I'm not trading with anybody, it's not even among people how could this possibly be interstate commerce?

22:01and the answer was that because he consumed his own wheat he hadn't consumed his own wheat, he might have consumed wheat from another state but he didn't, he consumed his own wheat and therefore he indirectly influenced interstate commerce in wheat by not eating interstate wheat well that's again i don't think there's anybody who drafting the constitution imagined that the clause could possibly refer to something like that but that's an example of what has happened Very recently, the Supreme Court has very timidly begun to rethink this expansive interpretation of the Commerce Clause. Any time the Supreme Court timidly re-thinks something, the media portrays it as the sky is falling and we're going back to the year 1790.

22:50So the tiniest little thing is interpreted as everything is going in the trash can. But, for instance, the most well-known case is the case of the United States versus Lopez from 11 years ago, 1995. It was a case involving a legislative act that was passed under George Bush Sr., the Gun-Free School Zones Act, 1990, which made it a criminal offense to carry a firearm within a thousand feet of a school. Now, I don't think many people would find that to be at least an unreasonable idea, whether you want to have federal regulation as another matter, Probably none of us would really like to see firearms within a thousand feet of a school. Well there were already laws to that effect in 40 states in 1990.

23:36So presumably this matter was already being addressed. But what's significant is how did the government justify doing that? Normally the federal government doesn't feel like it has to justify doing anything because no one ever says to the government anymore, Well, what constitutional clause gives you the power to do X? If you ask that at a press conference, you will not be invited back. The answer is, we don't want to answer that. But they did actually give, they volunteered an answer to that. They said, well, here's why the federal government has the power to regulate gun possession within a thousand feet of a school. The argument went like this, if students are trying to study and they have to worry about the possibility of there being firearms in the school or near the school, makes it hard for them to learn.

24:24Well, okay, true, that's one of the reasons we're homeschooling our kids. I would be terrified to send my kids to school. But in any event, the argument goes that it's hard for them to learn. They can't learn in an environment in which there may be guns present. And if they can't learn, they're going to be ignorant. And if they're ignorant, they won't be able to produce as much in the economy and interstate commerce will suffer. Therefore, this can be regulated because it affects interstate commerce. Well, that was too much even for the Supreme Court. I mean, the argument basically is if, you know, you're not going to learn as much if you're, you know, obviously if you're being attacked, true. But the question is, does that actually, can that really be said to influence interstate commerce directly enough to justify federal involvement? And the court struck that down and said, no.

25:12No. But they still take the view of substantial effect. They're just arguing that substantial effect has not been demonstrated here. You haven't demonstrated that there's a substantial effect on interstate commerce. There is, by the way, also, just last year, there was a California law that was challenged involving the medical marijuana issue. People who, for various reasons, want to use marijuana for medical purposes were finding that the federal government was telling them they couldn't, and California tried to say, The Federal government's brief in the case against California argued that medical marijuana was subject to federal regulation because its use affected interstate commerce, because it affects the interstate marijuana market. Well, the interstate marijuana market is illegal, so it's not clear why this would even be relevant.

26:02But the argument was that because if I use medical marijuana then that influences the interstate market in marijuana because now there's less marijuana in my state, we need more produced somewhere. I mean, I don't even follow it really, but that's pretty much the argument. It affects interstate commerce. Well, Clarence Thomas, in his dissent in this case, argued that, look, the two patients who were involved in this particular case had used marijuana that he said never had been bought or sold, had never crossed state lines, has no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything. And the Federal Government is no longer one of limited and enumerated powers. So, I mean, that is an interesting point. I mean, if you can do this, then what would not be subject to regulation under the Commerce Clause?

26:52In fact, I and some other people have suggested that, according to this logic, human reproduction should be regulated by the Federal Government. Because the more people we have, clearly increase in population will affect interstate commerce. The more people we have, the more commerce we'll have. So therefore the federal government should regulate human reproduction. On what grounds could it not do that? In fact, Justice Oliver Wendell Holmes anticipated this line of argument and said, commerce depends upon population, but Congress could not on that ground undertake to regulate marriage and divorce. Well, that's what you think. If they really want to, if they thought they could get away with it, it seems to me they have all the logic on their side based on this interpretation of the Commerce Clause. Now, my coverage of these two are much, much briefer, I'd like to do, and then we can stop and break.

27:42The next clause I'd like to cover, I don't think it's mentioned in my book at all, is the Necessary and Proper Clause. So what does this refer to? Well, Article 1, Section 8 once again, includes 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 department or officer thereof. So this clause that the Federal Government has all powers that are necessary and proper to execute the powers granted to it has also been a source of controversy. This is often presented to students in social studies classes as the elastic clause that could pretty much cover anything.

28:27So again, we want to look at what does this mean? What was this intended to mean? Was this clause really intended to mean that the federal government could pretty much do whatever it thought necessary and proper? Okay, good question. Well, at the Constitutional Convention, a fellow named Gunning Bedford proposed that the Federal Government should have sweeping, open-ended power to legislate quote, in all cases, for the general interests of the Union. That was rejected. So the idea that the Federal Government should just have this sweeping power to rule at its discretion was rejected. And instead it was proposed that the Federal Government should be given a listing of powers and that at the end of that, as part of that listing, it would also be granted any power or it would be declared that it possessed any power necessary to carry into execution these enumerated powers.

29:24Well, at the Virginia Ratifying Convention in 1788, George Nicholas told the convention that this clause, quote, only enables Congress to carry into execution the powers given to them, but gives them no additional power. The understanding was that this is not an additional grant of power. It simply clarifies the fact that the government would not be completely paralyzed if it should turn out that there is some little thing it needs to do in order to carry out powers A, B and C. It is assumed that naturally it would have to have the power to carry out A, B and C. James Madison held the same view. In Federalist No. 33, Alexander Hamilton argued that the Necessary and Proper Clause, was, along with the Supremacy Clause, which is another one we're not going to talk about, only made explicit what was logically and unavoidably implied in the very nature of the Constitution and added nothing to the Constitution other than simple clarification.

30:20Hamilton wrote, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers. So again, the idea is that this is not giving additional powers, it is simply clarifying the existing ones. Virginia representative William Branch Giles said this, If expediency constituted constitutionality, the House judged of the expediency, then every Every measure they could possibly enter into would be ipso facto constitutional.

31:08And what would then be the weight it was intended the Constitution should have and where were its limits? That is to say, if this clause were really intended to mean that the Federal Government could do anything that it considered to be necessary and proper, and then the government itself got to determine what counted as being necessary and proper, well, that wouldn't be any limit on the Federal Government at all, it could just do anything it wanted to. Thomas Jefferson argued in 1791 that if necessary and proper simply meant convenient, anything convenient can be done by the Federal Government, then you'd have a government of unlimited powers. St. George Tucker, who was a professor of law at the College of William and Mary, he was a judge in many courts, U.S. District Court in Richmond, in his highly regarded book, View of the Constitution of the United States, in 1803, feared that some would attempt quote, to expound these phrases in the Constitution so as to destroy the effect of the particular

31:59enumeration of powers by which it explains and limits them. He said the Necessary and Proper Clause neither enlarges any power specifically granted nor is it a grant of new powers to Congress but merely a declaration for the removal of all uncertainty that the means of carrying into execution those otherwise granted are included in the grant. And then Then he goes on and elaborates on that. Now again, John Marshall pops onto the scene and in the famous case McCulloch versus Maryland in 1819, Marshall in effect adopted the view that necessary meant convenient or useful and then he elaborated on that position. And at the time, a number of important Americans immediately responded to Marshall and argued that this was not the original interpretation of the Constitution.

32:47I'll just wrap up this discussion by noting that it doesn't really matter anymore what the necessary and proper cause was originally meant to mean. Today it means convenient, if the government finds it convenient for carrying out its powers then it can do X, Y or Z. Law students today read John Marshall and they read the McCulloch decision. They don't read Jefferson on this, they don't read John Taylor who wrote on this, they don't read St. George Tucker, they don't read any of the other commentators Lawsuitors who wrote on it. They read as if John Marshall had come down from heaven and explained to them what the Constitution meant. There is almost nothing else that law students are exposed to. And by the way, I have nothing against law students. I have a great many friends who are law students. But when you give them history like this, they immediately object and say, well, I didn't learn that in law school. And then the implication is

33:33so it can't be of any merit. But I think in law school, naturally you learn about how is the Constitution being interpreted today. You don't get what did people originally think Well, finally, my last little brief discussion involves something that is covered briefly in my chapter, and that's the general welfare clause. Article 1, Section 8 of the Constitution speaks of the power of Congress to lay taxes, quote, to provide for the common defense and general welfare of the United States, end quote. Well, again, we need to know what do these words mean? Does that mean the federal government could decide that something comported with the general welfare and therefore it was authorized to carry it out? Well, that's a good question. What was it intended to mean? Well, there was initially some controversy over this. After the Constitution was ratified, there were debates in the 1790s between Alexander Hamilton and Thomas Jefferson and James Madison on the question of the meaning of the general welfare clause.

34:28And I'll return to that at the end. What I want to note, though, is that prior to the ratification of the Constitution, it was clear enough to people what the clause meant. It was simply meant to clarify and to, in effect, limit and explain the specific powers granted to Congress. You'll note in Article 1, Section 8 of the Constitution, the powers granted to the U.S. Congress are all listed there. Now, one of the objections that was raised to the idea that the General Welfare Clause authorizes the government to do anything it likes, as long as it's for the general welfare, was, if that's true, why do we bother to list specific things the government has the power to do? If it can do anything for the general welfare, then we wasted our time listing specific things. So, for instance, why would we bother putting in a statement that the government can establish post roads and deal with weights and measures?

35:25What's the point of putting all those powers in there if the federal government has, in effect, any power that comports with the general welfare? These are good questions and they are questions that were raised by James Madison and Thomas Jefferson and others. In fact, Patrick Henry, the great Virginian who feared that this general welfare clause would one day transform the U.S. government into a government of unlimited powers, he was assured at the Virginia ratifying convention that the clause could never be interpreted that way because the federal government would only have those powers that were expressly delegated to it. and the Virginia Ratifying Convention used the words expressly delegated. Unless the states had expressly given a power to the federal government, then that government did not possess that power.

36:13So it would not have the authority simply to use the general welfare clause as an open-ended, entering wedge to allow it to do pretty much anything that it liked. A couple of supporting statements for this and then we will adjourn for a moment. Madison said, the Constitution has not created an indefinite government, but a limited government tied down to the specified powers which explain and define the general terms. General welfare is one of the general terms. The specified powers tie them down. So that is to say, when you carry out the government's powers, you have to do it in a way that is for the general welfare. We should not be looking to benefit just one sector of the country or one class, but it should be for the general welfare when you carry out these specified powers.

37:04That was the understanding. Madison said, it would be absurd to say, first, that Congress may do what they please, and then to say they may do this or that particular thing. In fact, the meaning of the general terms in question, again, general welfare is what he means, must either be sought in the subsequent enumeration, which limits and details them, or they convert the government from one limited, as hitherto supposed, to the enumerated powers, into a government without any limits at all. And then so on and so forth. And there are so many statements regarding the general welfare clause. It's almost an embarrassment of riches. Jefferson repeatedly said that you would wind up with a government of unlimited powers if you interpreted the general welfare clause that way.

37:50Now the one objection that's raised to my interpretation here of the General Welfare Clause is that Alexander Hamilton did in fact in the early 1790s argue the General Welfare Clause was in fact a broad grant of power to the Federal Government, a broad grant of spending power and that the Federal Government was not confined to the powers granted to it in Article I, Section 8 explicitly and that it could in fact carry out other functions under the cover of the General Welfare Clause. Well what is worth noting here is that that was not the position Hamilton before the Constitution was ratified he assured everybody that don't worry agriculture and other local concerns can never be swallowed up by the federal government under cover of the General Welfare Clause.

38:36Then in 1791 he suddenly says agriculture can be regulated by the federal government. by the Federal Government. So clearly, he is obviously, before the Constitution is ratified, he's obviously trying to persuade people to ratify. And then once they're stuck in it, then he says, oh, by the way, we're going to interpret it this way. It's also worth noting that Hamilton, even by his own admission, was very far from the mainstream of the Convention. In fact, shortly after the Convention, he even said that he was looking forward to the time when the states would be reduced to a condition of utter subordination, which put has brought him far out of the mainstream of anything anybody had ever said really or thought at the time and his views on the general welfare clause by and large come after the Constitution has been ratified so an after the fact statement about what Hamilton thinks the clause means is not nearly as important or suggestive as what people were being told at the time during the drafting of the document and at the ratification conventions.

39:37Let me leave you with this thought. In case the dangers of a broad interpretation of the general welfare clause are not obvious, consider this. In the 1990s, there was a Supreme Court Justice who asked Bill Clinton's Solicitor General, could you please name a single activity on which the Congress might choose to legislate that in your view would go beyond its legitimate powers under the Constitution? The man stood there flummoxed and could not name anything.