Health care reform and the general welfare clause

One of the questions guiding the discussion over health care reform is part of a larger, more fundamental debate that has been going on in America since before the ratification of the Constitution: what is the proper role of government? In the current context, constitutional scholars point to the General Welfare Clause in Article 1, Section 8, Clause 1 (bold emphasis mine)::

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; but all Duties, Imposts and Excises shall be uniform throughout the United States

Mainstream constitutional interpretation reads this as a direct grant of power to Congress to spend money on anything it deems necessary to secure the general welfare, including programs of social insurance. Since Social Security was judged constitutional by the Supreme Court in 1937 in the cases Steward Machine Co. v. Davis and Helvering v. Davis, the General Welfare Clause has been seen as a broad grant of power to the Congress to spend money for purposes that benefit the country as a whole. While this clause is not interpreted as enabling Congress to legislate in the internal affairs and governance of the States, it does provide Congress broad discretion in the areas that it can spend federal money. So long as funds are not spent for purely local purposes, Congress is not limited on the types of programs and projects for which it can appropriate.

But this was not the original principle upon which the Constitution was founded. James Madison and Thomas Jefferson envisioned the Constitution as granting specific, enumerated powers to the federal government, as detailed in Article I, Section 8, Clauses 2 through 17. The general welfare for which Congress could expend revenue in Clause 1 was limited by the rest of Article I, Section 8. Otherwise, as Madison posed the question in a letter to Andrew Stevenson, "why, on that supposition [that the phrase general welfare provided expansive powers to the Congress], so much critical labour was employed in enumerating the particular powers, and in defining and limiting their extent?"

Madison was arguing against the more expansive interpretation of the General Welfare Clause pushed by Alexander Hamilton, as classically expressed in Hamilton's 1791 Report on Manufacturers:

The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

Although the Madisonian interpretation of "general welfare" was the overriding perspective throughout the nineteenth century, Hamilton's view was the interpretation that finally won out in the Supreme Court's Steward Machine and Helvering cases. Because the federal programs that have grown out of the New Deal augmented and, in many cases, overrode founding principles, fundamentals of constitutional interpretation have been irrevocably changed through the political process set up by the Constitution itself (a move that falls within the structure of the Governance Imperative, but a move, nonetheless, aided by the passage of the Seventeenth Amendment and the loss of the States to their direct representation in the federal legislative process). Because of what the vast majority of the American people now expect, it must be conceded that health care reform would fall within the purview of the general welfare, even though the concept of governmental welfare was poisonous to society in the view of the founders.

Benjamin Franklin's wrote in 1776 in his On the Price of Corn and Management of the Poor:

I am for doing good to the poor, but I differ in opinion of the means. I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it. In my youth I travelled much, and I observed in different countries, that the more public provisions were made for the poor, the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer.

A principle even more fundamental than enumerated federal powers animates the American engine even today: each man is able to apply his talents and contribute to the marketplace as he is able, retaining for himself the fruits of his labor. What a man earns is his own and is not subject to government seizure and redistribution. Jefferson wrote in a letter to Joseph Milligan in 1816:

To take from one, because it is thought that his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, "the guarantee to every one of a free exercise of his industry, and the fruits acquired by it." If the overgrown wealth of an individual be deemed dangerous to the State, the best corrective is the law of equal inheritance to all in equal degree; and the better, as this enforces a law of nature, while extra taxation violates it.

Whether we are ready to move another step beyond this first principle is at the heart of the health care reform debate, but there are no constitutional barriers to health care reform's passage.

Why Words Matter

Politicians are known for their speeches with little or no content. Yahoo has an article about the results of a Poll on which politician is the worst at using gobbledegook. Their use of empty phrases threatens their own agenda - here's how.

When the governor of your state says something incomprehensible, you have to ask yourself, "Am I the only one who didn't get it?" Politicians surround themselves with those are trusted which means you can't rely on the audience for an honest reaction. Even the media, who has an ulterior motive in the form of continued access to those in power, won't always call a misspeaking office-holder on the carpet. There are numerous historical stories of the people who keep company with those in power. Just because our form of power distribution has a different name does not change human nature. Drawing a coterie of yes-men and sycophants is a well known consequence of acquiring power.

If you conclude that you didn't understand some statement, it would be logical that other members of the audience didn't understand it either. Being charitable would mean that the speaker failed in his or her effort to communicate. It is a thin line from failed communication and the perception that the speaker doesn't even understand the issue in the first place. Either way shows the speaker in a unflattering light.

When a small group of friends is gathered around to shoot the breeze, it is acceptable to give the speaker a break. When the leader of the some body politic does the same thing, they must realize that they become their own worst enemy, and for good reason.

Whence the compromise?

The passing of Senator Ted Kennedy this past week has elicited much commentary on the apparent passing of the old political skill of Compromise. The standard refrain is something like this:

Senator Kennedy was from an old era of Senate politics, an era that engendered bipartisan deals and encouraged the art of compromise, dominated by moderate senators from both parties. Over the past twenty to thirty years, radicals from both parties have increasingly dominated the ranks of the Senate, leaving moderates to fill only about 10% of the chamber. As a result, the Opposition party seeks only to delay and obstruct and the Majority party pushes through its legislation on party-line votes.

Professor Sandy Levinson even go on to blame this state of affairs on our "undemocratic Constitution," pointing out statistics like the six senators on the Senate Finance Committee negotiating health care reform (an illustrative irony in itself - many who have lameted the loss of compromise have been the same ones impatiently demanding that the Senate Finance Committee drop its negotiations and "just approve a plan") represent a mere 2.77% of the U.S. population. This charge, however, seems to miss the point. The Senate was never meant to represent the American population as a whole, rather Senators represent their individual states. Besides this, the Constitution has governed the United States for well over 200 years and the Senate has been considered "the world's most deliberative body" for much of that time, admired by many around the world as one of the most august legislative chambers in history.

So if we have indeed lost the art of compromise in our politics and assuming our Constitution is not to blame (indeed, we have argued here that the Constitution engenders compromise), what has caused our supposed decline in bipartisan bills facilitated by compromise? It seems to me that this decline correlates with the rise of conservatives in the Republican Party during and following the time of President Reagan and the disappearance of that strange politician truly of a bygone era, the Southern Democrat. The Republican Party has become much more monolithic, dominated completely by the conservative movement, while the Democrats have been all over the map between moderate to liberal (or progressive to use the current label of choice).

Nevertheless, the Republican and Democratic Parties were both largely dominated by moderate and liberal politicians prior to the last generation's rise of conservatives. President Nixon, who fought for universal health care and Employer Mandates and instituted wage and price controls, was hardly a conservative by today's standards (or any era's standards, for that matter). President Ford nominated John Paul Stevens to the Supreme Court, one of the most liberal justices in the history of the Court. Conservatives had no voice in the government prior to Reagan's election to the presidency, so they were effectively locked out of the debate and ignored.

So when one side is completely sidelined, how is the resulting federal legislation the result of compromise? One side (liberals) and moderates agreeing among themselves might be compromise, but not to the degree that these fellows pining for the good old days would like to believe. For all their acrimony, true compromises were struck in the 1990's between President Clinton and the Republican Congress time and time again: the 1996 welfare reform law, the 1996 Telecommunications Act, the balanced budgets in 1997 and onward, to name a few.

The process of compromise is always ugly when one is in the middle of it, and it never looks like compromise (remember the cries of deadlock and obstructionism when Speaker of the House Newt Gingrich and the House Republicans forced a shut down of the federal government in 1995?). But given the time for the political process to work itself out, the end result is ALWAYS better than a partisan wish-list crammed down the collective throats of the electorate. Voters might swallow the bitter pill of such a legislative maneuver, but the majority party will be short-lived in their majority status. Americans have longer memories than Talking Heads give them credit for.

War Powers

Stephen Griffin over at Balkinization has a series analyzing post-1950 war powers and analyzing the Korean War as an instance informal constitutional change to shift the balance of power between Congress and the President (in the same manner that the New Deal was an informal constitutional change that shifted power between Congress and the states under the commerce clause).

Part 1
Part 2
Part 3
Part 4