Seder and the Welfare Clause

So, day before yesterday at Passover Seder with my wife's family, my brother-in-law, John; a non-repentant, tea-partying, self-described Constitutionalist; and I start in on politics and healthcare reform. The debate followed the general conservative, liberal talking points. He argued that forcing anyone to buy health insurance was unconstitutional, unprecedented, and unfair in so far as it required he and his children to pay for the poor decisions of others who choose not to be successful. I claimed that healthcare reform is indeed constitutional and that it's a valid exercise of government's role in providing for those in need and addressing national crises.

He responded that the Constitution only guarantees life, liberty, and the pursuit of happiness (which is not quite correct; that's the Declaration of Indepence, not the Constitution). After correcting his error, I reminded him that the U.S. Constitution does indeed allow government to provide for those in need and that this power is stated in the first several words of the document, at which point, we both scrambled for copies of the Constitution. He ran off to his SUV to grab the copy he keeps on hand; I whipped out my Droid (that I've named R2 and is, BTW, one of the coolest gadgets evah) and pulled up an online copy. When he got back to the living room I directed him to the Preamble which states:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Ok, so after researching the Welfare Clause later, it became clear that the Preamble to the Constitution is not really binding. It's not the law, it's just the intro to the Law. In 1905, the Supreme Court held that, "Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments."

Ahem . . . so . . . uhm, my bad on that one John.

Still, there's a relevant Welfare Clause in the body of the Constitution that addresses government's, role. Article I, Section 8, of the Constitution states that, "The Congress shall have power To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States;"

Throughout U.S. history, this general welfare clause has been vigorously debated. James Madison argued that the clause was a redundancy and granted no more powers to the government than those already enumerated in the Constitution while Alexander Hamilton argued that the clause expanded Congress's power to tax and spend, as the clause states, for the general welfare of the United States.

The Supreme Court, in the 1936 U.S. v. Butler case, addressed the debate over the Welfare Clause and sided with the Hamiltonian view that the welfare clause did indeed grant expansive tax and spend powers to Congress. The Court concluded that:

Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one.

Not only does Congress then have the responsiblity to spend for the general welfare of the United States (say, for example, if an issue like healthcare threatens the nation's financial stability and leaves a significant number of citizens at risk), Congress also has broad appropriation authority to spend tax dollars on general welfare.  I suspect that between the welfare clause and congressional authority to regulate commerce, the recent slew of lawsuits challenging the constitutionality of the healthcare reform bill will fail. The notion that government has a role to play in promoting the country's general welfare is not some liberal flight of fancy or do-gooders run amok. This notion is engrained in our founding documents and serves a vital function in uniting a nation.

Anyway, despite some tense moments before the meal, John and I sat next to each other during the Seder. And really isn't every family dinner tense? If John and I weren't arguing about politics somebedy else would've been arguing about the chicken. We had a good time talking politics, the kids, work, and life. We disagree. We're of different religions. We're of different races. But we break bread (in this case Matzah) together. We're family. Sphere: Related Content