By: Ben Bryan, THL Contributor
While I’m not particularly interested in dealing with the overall argument he makes, I must take issue with the claims Tom Mullen makes in a recent post, featured here at THL, about Article 1, section 8 of the Constitution.
Mullen argues, along Hamiltonian lines, that the power given to “provide for the common Defence and general Welfare of the United States” grants a sort of unlimited power. I find this argument rather textually problematic.
Before dealing with the textual issues, however, I have some concerns with details conspicuously absent from the historical account Mullen gives. He is quite right that Hamilton supported his reading of the Constitution. He fails to point out that Madison held the opposing position.
Without this detail it sounds as if the Constitution was clearly created with Hamilton’s understanding in mind. But, as it turns out, the founders were far from univocal in their acceptance of some sort of big government construction of Article on 1, Section 8.
Madison, the so-called “father of the constitution” himself, disagreed with Hamilton, as did others. My point in this, of course, is not to invoke some sort of authority in Madison, as if he speaks for the supporters of the Constitution. I only wish to point out that one cannot similarly invoke the authority of Hamilton.
The question of historical authority out of the way, let's examine the text itself. Article I, Section 8 begins as follows:
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;
The rest of the section consists of a list of powers granted to Congress. The disagreement between Hamilton and Madison (and Mullen and me) centers around the understanding of what is meant by “provide for the common Defence and general Welfare.”
Mullen argues that this provides basically unlimited powers. But it cannot. You see, a few lines down in the enumerated powers, Congress is given the power to do things like raise armies. Now, if they’ve already been given the power to tax “for the common Defence,” then the granting of specific military powers is entirely unnecessary.
Similarly, if taxing for the general welfare is thought to include just about anything, then the entire rest of Article I, section 8 is a complete waste of ink. We would only need the first clause. The only reasonable way to understand this section is to assume that the enumeration of powers that follows the first clause is an explanation of this first clause. Thus, the specific items are simply explanations of what is meant by the “common defence” and the “general welfare.“
If the "common defence" and "general welfare" is understood broadly, what do we do with the rest of the section? Are these just suggestions? What function does this list serve if we already know that government can provide for defense and welfare? If defense and welfare have any content of their own not specified in the other listed powers, then it would seem to render rather superfluous the listing of the other powers.
What disturbs me about Mullen’s argument is not so much that it conflicts with the Madisonian position, but that it ignores Madison’s argument and doesn’t engage with its claims about the text. This points to a bigger problem with Mullen’s broader argument. Mullen attributes a single voice of sorts to the Federalists.
Many people, however, who supported the Constitution, would later oppose the more big government Federalists. Madison, who wrote many of the Federalist papers, is a perfect example of this. He insisted we needed the Constitution. But he was no Hamiltonian advocate of unlimited powers. Hamilton does not speak for all the Federalist, or even for arguably the most important Federalist, Madison.
That said, I’m not addressing Mullen’s overall argument that the constitution doesn’t protect property. I’ve got my concerns with it (not so much with rather he’s correct, which he seems generally to be, but with what it means and whether it matters that he’s correct), but that’s not important. What is important is that we don’t mistake the Constitution as some sort of embodiment of big government Hamiltonianism.
