The Many Clauses of the Constitution | Eastern North Carolina Now

    Publisher's Note: This 6th installment in Diane Rufino's series examining Our Founding Principles considers the many clauses of the U.S. Constitution.

The "General Welfare" Clause --

There are two "General Welfare" clauses in the Constitution -
    1). In the Preamble - "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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." [Providing for the welfare of the general public is a basic goal of government. The preamble to the U.S. Constitution cites promotion of the general welfare as one of the reasons for the creation of the Constitution.].

    2). In Article I, Section 8, which reads, "The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and General Welfare of the United States." (This clause is called the General Welfare Clause or the Spending Power Clause).

It is the latter, the inclusion of a "General Welfare" clause in the body of the Constitution, that is the source of controversy.

    According to the Founders, this clause does NOT grant Congress the power to legislate for the general welfare of the country (for that is a power reserved to the states through the 10th Amendment); Rather, it merely allows Congress to spend federal money for the general welfare. (for example, "conditioned" spending to promote the health and safety of citizens).

    According to the Founders, the General Welfare Clause of the Constitution applies only to those 17 original enumerated powers. As Thomas Jefferson explained: "Our tenet ever was, and, indeed, it is almost the only landmark which now divides the federalists from the republicans, that Congress has not unlimited powers to provide for the general welfare, but were to those specifically enumerated; and that, as it was never meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money."

    According to James Madison, the clause authorized Congress to spend money, but only to carry out the powers and duties specifically enumerated in the subsequent clauses of Article I, Section 8, and elsewhere in the Constitution, not to meet the seemingly infinite needs of the general welfare. However, Alexander Hamilton maintained that the clause granted Congress the power to spend without limitation for the general welfare of the nation. [The "Madison" view v. The "Hamilton" view]. The winner of this debate was not declared for 150 years.

    In United States v. Butler, 56 S. Ct. 312, 297 U.S. 1, 80 L. Ed. 477 (1936), the U.S. Supreme Court invalidated a federal agricultural spending program because a specific congressional power over agricultural production appeared nowhere in the Constitution. According to the Court in Butler, the spending program invaded a right reserved to the states by the Tenth Amendment.

    Though the Court decided that Butler was consistent with Madison's philosophy of limited federal government, it adopted Hamilton's interpretation of the General Welfare Clause, which gave Congress broad powers to spend federal money. It also established that determination of the general welfare would be left to the discretion of Congress. In its opinion, the Court warned that to challenge a federal expense on the ground that it did not promote the general welfare would "naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress." The Court then obliquely confided, "How great is the extent of that range ... we need hardly remark..... Despite the breadth of the legislative discretion," the Court continued, "our duty to hear and to render judgment remains." The Court then rendered the federal agricultural spending program at issue invalid under the Tenth Amendment.

    With Butler as precedent, the Supreme Court's interest in determining whether congressional spending promotes the general welfare has withered. In South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), the Court reviewed legislation allowing the secretary of transportation to withhold a percentage of federal highway funds from states that did not raise their legal drinking age to twenty-one. In holding that the statute was a valid use of congressional spending power, the Court in Dole questioned "whether 'general welfare' is a judicially enforceable restriction at all."

    Congress appropriates money for a seemingly endless number of national interests, ranging from federal courts, policing, imprisonment, and national security to social programs, environmental protection, and education. No federal court has struck down a spending program on the ground that it failed to promote the general welfare. However, federal spending programs have been struck down on other constitutional grounds. [General Welfare http://law.jrank.org/pages/7116/General-Welfare.html#ixzz0padpQAJ9 ]


The "Commerce" Clause --

    The Commerce Clause is an enumerated power listed in Article I, Section 8, Clause 3.
Interstate commerce, or commerce among the several states, is the free exchange of commodities between citizens of different states across state lines.

    The Commerce Clause was designed to eliminate the intense rivalry between groups of states that had tremendous commercial advantage because of their proximity to a major harbor, and those states that were not near a harbor. That disparity was the source of constant economic battles among the states. The exercise by Congress of its regulatory power has increased steadily with the growth and expansion of industry and means of transportation.

    Power to Regulate: The Commerce Clause authorizes Congress to regulate commerce in order to ensure that the flow of interstate commerce is free from local restraints imposed by various states. When Congress deems an aspect of interstate commerce to be in need of supervision, it will enact legislation that must have some real and rational relation to the subject of regulation. (Congress may constitutionally provide for the point at which subjects of interstate commerce become subjects of state law and, therefore, state regulation).

    Although the states have some inherent power to regulate commerce within their borders (under 10th Amendment), that right must be exercised in a manner that does not interfere with, or place a burden on, interstate commerce, or else Congress may step in and regulate. Congress' Commerce Power is very broad.

    Interstate commerce also includes the transmission of intelligence and information--whether by telephone, telegraph, radio, television, or mail--across state lines. (The transmission of a message between points within the same state is subject to state regulation). Furthermore, Congress can regulate the agencies and instrumentalities involved in commerce, such as private and common carriers.

    The Commerce Clause is the section under Section 1, Article 8 where this current Congress claims to have the power to mandate universal healthcare insurance. (So far, Attorney Generals in 14 States are challenging this bill as an unauthorized exercise of that power). Under the Commerce Clause, mandates by the government typically apply to people as parties to economic transactions (when they "have a substantial effect on interstate commerce or touch on interstate commerce in a substantial way"), and not simply as individuals. The issue for a majority of Americans therefore is this "individual mandate" - this new government creation, this requirement that almost every U.S. citizen must buy government-approved health insurance. http://www.ncsl.org/?tabid=18906

Commerce Clause Jurisprudence:

    The formal approach of early Commerce Clause cases (starting from 1824 with Gibbons v. Ogden) focused on such questions as whether the regulated activity is "in" or "outside" the stream of commerce, whether the activity is "local" or "interstate," or whether the effects of the activity on interstate commerce are "direct" or "indirect." The contrasting empirical approach, illustrated by Houston E. & W. Ry. Co. v. US, looked to the magnitude of the effect that the regulated activity has on interstate commerce, without special regard to how the activity is categorized. In Houston, the Court upheld a federal agency's regulation of freight rates on travel wholly within Texas because the freight transportation within Texas was found to be substantially affecting interstate commerce.

    Hammer v. Dagenhart (1918) considered the constitutionality of the Child Labor Act, which banned items produced by child labor from interstate commerce. Adopting the formal approach, the Court saw the Act as unconstitutional attempt to regulate a purely local matter, workplace conditions. The harm of child labor, the Court concluded, had nothing to do with interstate commerce and thus fell outside the reach of congressional power.

    N.L.R. B. v. Jones (1937) represented an important turning point in the Court's Commerce Clause jurisprudence. The year before, in a case called Carter v. Carter Coal Co., the Court had invalidated a New Deal program that attempted to regulate the wage and hour practices of coal companies on the ground that such practices were "local" and had only an "indirect" effect on interstate commerce. Enraged by the Court's decision in Carter and other cases, President Roosevelt proposed "packing the Court" with sympathetic justices by increasing its size from nine to fifteen. In N.L.R. B. v. Jones, Chief Justice Hughes and Justice Roberts side with the government in voting to uphold an N.L.R.B. action ordering the reinstatement of union organizing employees protected by federal law at a Pennsylvania steel plant--the "switch in time that saved nine." Over the objections of four dissenting justices who called the interstate effects of the regulated activity "too indirect," the Court concluded that the steel industry is an interstate web of activities stretching from the iron mines of Minnesota to the steel plants of Pennsylvania and thus the manufacturing of steel is properly reachable under the Commerce Clause.

    US v. Darby (1941), in unanimously overruling Hammer v. Dagenhart, demonstrated how much the Court had changed its approach to Commerce Clause in a generation. Using a "substantial effects" test, the Court upheld the Fair Labor Standards Act - an important piece of legislation that effectively set national minimum wage and maximum hour laws by prohibiting the interstate shipment of goods manufactured in violation of the federal standards.

    Once having established that congressional exercises of power were valid if shown to regulate activities "substantially affecting" interstate commerce, the Court proceeded to open up more opportunities for exercise of the commerce power by holding that an activity only trivially affecting interstate commerce might nonetheless by regulated if all of the regulated activities of various individuals--taken cumulatively--had substantial interstate effects.

    The cumulative effects test also convinced the Court to uphold provisions of the 1964 Civil Rights Act that required the 216-room Heart of Atlanta Motel to rent its rooms to persons regardless of race (Heart of Atlanta v. US) and outlawed racial discrimination at small restaurants such as Ollie's Bar-B-Q in Birmingham (Katzenbach v. McClung). In 1971, legislation making loansharking a federal crime was upheld on a similar basis (Perez v. US) . The Heart of Atlanta, McClung, and Perez cases led to speculation that perhaps any activity might be regulated under a loose application of the cumulative effects test.

    In US v. Morrison (2000) the Court considered a suit brought by a former student of Virginia Poytechnic Institute who alleged she was raped by two university football players. The defendant players and university argued that the Violence Against Women Act, which allowed victims of gender- motivated violence to bring federal civil suits for damages, was outside of the scope of the commerce power. The Court agreed with the defendants, even though in this case Congress had made specific findings that gender-motivated violence deterred interstate travel, diminished national productivity, and increased medical costs. The Court concluded that upholding the Violence Against Women Act would open the door to a federalization of virtually all serious crime--as well as family law and other areas of traditional state regulation. The Court said that Congress must distinguish between "what is truly national and what is truly local"--and that its power under the Commerce Clause reaches only the former. In a concurring opinion, Justice Thomas went even further, urging abandonment of "the substantial effects" test.

Dormant Commerce Clause -

    [The Dormant Commerce Clause is also known as the "Negative" Commerce Clause, is a legal doctrine that the Supreme Court has inferred from the Commerce Clause in Article I of the United States Constitution. The Commerce Clause expressly grants Congress the power to regulate commerce "among the several states." The idea behind the Dormant Commerce Clause is that this express grant of power implies a negative converse which is a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. One state can't discriminate against goods and services (commerce) from another state. The restriction is self-executing and applies even in the absence of a conflicting federal statute. The "Privileges & Immunities" Clause of Article IV of the Constitution reads: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. James Madison, in defending this provision in the Constitution, wrote: "Those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State...."].


The "Necessary & Proper" Clause --

    The "Necessary & Proper" Clause is found in Article I, Section 8. This clause is one of the most powerful in the Constitution. It allows the Government of the United States 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." Consequently, it has been used for all types of federal actions including requiring integration in the states.

    McCulloch v. Maryland, 17 U.S. 316 (1819):
Facts: Maryland (Plaintiff in original lawsuit) enacted a statute imposing a tax on all banks operating in Maryland not chartered by the state. The statute provided that all such banks were prohibited from issuing bank notes except upon stamped paper issued by the state. The statute set forth the fees to be paid for the paper and established penalties for violations. The Second Bank of the United States was established pursuant to an 1816 act of Congress. McCulloch (Defendant), the cashier of the Baltimore branch of the Bank of the United States, issued bank notes without complying with the Maryland law. Maryland sued McCulloch for failing to pay the taxes due under the Maryland statute and McCulloch contested the constitutionality of that act. The state court found for Maryland and McCulloch appealed.

    Issues:

    1). Does Congress have the power under the Constitution to incorporate a bank, even though that power is not specifically enumerated within the Constitution?

    2). Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under the Constitution?

    Holding:

    1). 1.Yes. Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause (Article I, section 8).

    2). No. The State of Maryland does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution.

    Holding: The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. There is nothing in the Constitution which excludes incidental or implied powers. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate and plainly adapted to that end, and which are not prohibited, may be employed to carry it into effect pursuant to the Necessary and Proper clause.

    The power of establishing a corporation is not a distinct sovereign power or end of Government, but only the means of carrying into effect other powers which are sovereign. It may be exercised whenever it becomes an appropriate means of exercising any of the powers granted to the federal government under the U.S. Constitution. If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.

    The Bank of the United States has a right to establish its branches within any state. The States have no power, by taxation or otherwise, to impede or in any manner control any of the constitutional means employed by the U.S. government to execute its powers under the Constitution. This principle does not extend to property taxes on the property of the Bank of the United States, nor to taxes on the proprietary interest which the citizens of that State may hold in this institution, in common with other property of the same description throughout the State. [http://www.lawnix.com/cases/mcculloch-maryland.html ]

    Chief Justice John Marshall is referred to as the Babe Ruth of the Supreme Court... a real heavy hitter.
However, according to James Madison, Marshall got the decision in McCulloch v. Maryland completely wrong. In fact, he protested that if Marshall's nationalist decision in the case (which said that Congress' powers were not limited to those "expressly delegated") had been foreseen, the Constitution would never have been sold to the individual states and would have never been ratified.



The "Supremacy" Clause --

    The Supremacy Clause is found in Article VI, Clause 2.
The Supremacy Clause, which the Justice Department cites in its brief, is a clause in the United States Constitution, Article VI, Clause 2 which establishes the Constitution and all laws made in furtherance of its powers as the supreme law of the land. [The "Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..."]. Chief Justice John Marshall interpreted the clause to mean that the states may not interfere with the functioning of the federal government and that federal law prevails over an inconsistent state law. What this means is that the federal government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state exercise of power. The catch with the Supremacy Clause is that the law must first be in furtherance of an actual grant of Constitutional power. The government cannot claim its immigration laws are supreme if the government never had the actual power to regulate immigration in the first place.


Pre-emption Power --

    If Congress has clearly demonstrated its intent to regulate the entire field, then the state is powerless to enact subsequent legislation even if no conflict exists between state and federal law. This type of congressional action is known as federal Preemption of the field. Extensive federal regulation in a particular area does not necessarily result in federal preemption of the field. In determining whether a state may regulate a given field, a court evaluates the purpose of the federal regulations and the obligations imposed, the history of state regulation in the field, and the Legislative History of the state statute. If Congress has not preempted the field, then state law is valid, provided that it is consistent with, or supplements, the federal law.

    Diane Rufino has her own blog For Love of God and Country. Come and visit her. She'd love your company.