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1 Center for American Progress |  The Fake James Madison
 The Fake James Madison
Conservatives’ Selective Reading of the Founding Fathers Threatens Social Security and Medicare
Ian Millhiser May 2011
Introduction
Te House Republican plan o phase ou Medicare is crashing and burning. Rep.-elec Kahy Hochul (D-NY) jus won an impossible elecion vicory by campaigning o keep Medicare alive. Te Senae jus soundly rejeced he House GOP’s plan. Even ormer Speaker o he House New Gingrich, who once shu down he governmen in a ailed atemp o orce Presiden Bill Clinon o suppor draconian Medicare cus, blased his Medicare-killing plan as “radical righ-wing social engineering. Ye even as his concered assaul on Medicare hemorrhages suppor rom eleced officials, conservaives have a backdoor plan o ge he cours o kill Medicare or hem. Numerous lawmakers embrace a discredied heory o he Consiuion ha would no only end Medicare ourigh bu also cause counless oher cherished programs o be declared unconsiuional. Under his heory, Pell Grans, ederal suden loans, ood samps, ederal disaser relie, Medicaid, income assisance or he poor, and even Social Securiy mus all be eliminaed as offensive o he Consiuion.
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 In essence, supporers o his consiuional heory would so compleely rewrie  America’s social conrac ha hey make Rep. Paul Ryan (R-WI), he auhor o he House GOP plan, look like Marin Luher King Jr. Tis issue brie explores he legal and hisorical gymnasics required o accep he conservaive posiion ha programs like Medicare and Social Securiy violae he Consiuion.
 The general welfare
 Alhough Congress’s auhoriy is limied o an iemized lis o powers conained in he ex o he Consiuion isel, hese powers are quie sweeping. Tey include he auhoriy o regulae he naional economy, build a naional posal sysem, creae com-prehensive immigraion and inellecual propery regulaion, mainain a miliary, and raise and spend money.
 
2 Center for American Progress |  The Fake James Madison
Tis las power, he auhoriy o raise and spend money, is among Congress’s broades powers. Under he Consiuion, naional leaders are ree o spend money in any way hey choose so long as hey do so o “provide or he common deense and general  welare o he Unied Saes.
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 For his reason, laws such as Medicare and Social Securiy are obviously consiuional because hey boh raise and spend money o he benefi o all Americans upon heir reiremen.Many members o Congress, however, do no believe he Consiuion’s words mean  wha hey say hey mean. Consider he words o Sen. Rand Paul (R-KY), who recenly explained he origin o he increasingly common belie ha Congress’s consiuional spending power is so small ha i can be drowned in a bahub:
 I you read [James] Madison, Madison will tell you what he thought o the Welare Clause. He said, “Yeah, there is a General Welare Clause, but i we meant that you can do anything, why would we have listed the enumerated powers?” Really, the Welare Clause is bound by the enumerated powers that we gave the ederal government.
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In essence, Paul and many o his ellow conservaives believe Congress’s power o collec axes and “provide or he common deense and general welare o he Unied Saes” really only enables Congress o build pos offices or und wars or ake oher acions expressly auhorized by some oher par o he Consiuion. According o his view, he spending power is no󲀔as i is almos universally undersood
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󲀔isel an independen enumeraed power auhorizing Congress o spend money.Paul’s undersanding o he Spending Clause is no simply he idiosyncraic view o an oulier senaor. Indeed, here is srong reason o believe his view is shared by he majoriy o his caucus. In he lead-up o he 2010 miderm elecions, congressional Republicans released a “Pledge o America,” which broadly oulined heir plans or gov-erning i hey were o prevail ha November.
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 In i, he lawmakers claimed ha “lack o respec or he clear consiuional limis and auhoriies has allowed Congress o creae ineffecive and cosly programs ha add o he massive defici year afer year.”
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Tis language suggess ha many conservaives agree wih Sen. Paul ha Congress is somehow exceeding is consiuional auhoriy o spend money. Bu here is no sup-por or his view in consiuional ex or in Supreme Cour preceden. In is very firs decision o consider he issue󲀔is 1936 decision in
United States v. Butler 
󲀔he Supreme Cour unanimously affirmed ha “he power o Congress o auhorize expendiure o public moneys or public purposes is no limied by he direc grans o legislaive power ound in he Consiuion,” as Sen. Paul would claim.
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 Similarly, while he ex o he Consiuion esablishes ha “he exercise o he spend-ing power mus be in pursui o ‘he general welare,’” neiher Sen. Paul nor he Pledge cies examples o laws ha ail o mee his crierion.
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3 Center for American Progress |  The Fake James Madison
Selectively reading Madison
 While conservaives’ narrow undersanding o he spending power finds no suppor in he ex o he Consiuion or in he Supreme Cour’s decisions, Sen. Paul is correc ha i does have one very amous supporer. In an 1831 missive, ormer Presiden James Madison claimed ha he bes way o read he Spending Clause is o ignore is lieral meaning and impose an exra-exual limi on Congressional power:
With respect to the words “general welare,” I have always regarded them as qualified by the detail o powers connected with them. o take them in a literal and unlimited sense would be a metamorphosis o the Constitution into a character which there is a host o proos was not contemplated by its creators.
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Sen. Paul suggess ha Madisons exra-exual limi is boh auhoriaive and binding󲀔even i i means ha programs ranging rom Social Securiy o Medicare o Pell Grans mus all cease o exis. Bu i is a misake o assume ha Madisons preerred consruc-ion o he Spending Clause mus resric modern-day congressional acion. Firs o all, even he mos prominen supporers o originalism”󲀔he belie ha he Consiuion mus be read exacly as i was undersood a he ime i was writen󲀔rejec he view ha an individual ramer’s inenions can change consiuional meaning. As he naion’s leading originalis, Supreme Cour Jusice Anonin Scalia, explains, “I don’ care i he ramers o he Consiuion had some secre meaning in mind when hey adoped is words. I ake he words as hey were promulgaed o he people o he Unied Saes, and wha is he airly undersood meaning o hose words.
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Indeed, Madison himsel would have been dismayed by he claim ha an esablished undersanding o he Consiuion mus bend o his own singular views. Like Scalia, Madison rejeced he noion ha he ramers’ personal desires can deea he words hey acually commited o ex. As he explained o uure Presiden Marin Van Buren, “I am aware ha he documen mus speak or isel, and ha ha inenion canno be subsi-ued or [he inenion derived hrough] he esablished rules o inerpreaion.
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Secondly, Madison embraced a way o inerpreing he Consiuion reminiscen o he evolving heories o consiuional inerpreaion ha are so widely decried by modern conservaives. Alhough Rep. Madison opposed on consiuional grounds he creaion o he Firs Bank o he Unied Saes in 1791, Presiden Madison signed ino law an ac creaing he Second Bank in 1816. He “recognized ha Congress, he Presiden, he Supreme Cour, and (mos imporan, by ailing o use heir amending power) he  American people had or wo decades acceped” he Firs Bank, and he viewed his accepance as “a consrucion pu on he Consiuion by he naion, which, having made i, had he supreme righ o declare is meaning.”
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