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 Kahy Hochul (D-NY) jus won an impossible elecion vicory by campaigning o keep Medicare alive. Te Senae jus soundly rejeced 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 Clinon o suppor draconian Medicare cus, blased his Medicare-killing plan as “radical righ-wing social engineering.” Ye even as his concered assaul on Medicare hemorrhages suppor rom eleced officials, conservaives have a backdoor plan o ge he cours o kill Medicare or hem. Numerous lawmakers embrace a discredied heory o he Consiuion ha would no only end Medicare ourigh bu also cause counless oher cherished programs o be declared unconsiuional. Under his heory, Pell Grans, ederal suden loans, ood samps, ederal disaser relie, Medicaid, income assisance or he poor, and even Social Securiy mus all be eliminaed as offensive o he Consiuion.
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In essence, supporers o his consiuional heory would so compleely rewrie America’s social conrac ha hey make Rep. Paul Ryan (R-WI), he auhor o he House GOP plan, look like Marin Luher King Jr. Tis issue brie explores he legal and hisorical gymnasics required o accep he conservaive posiion ha programs like Medicare and Social Securiy violae he Consiuion.
The general welfare
Alhough Congress’s auhoriy is limied o an iemized lis o powers conained in he ex o he Consiuion isel, hese powers are quie sweeping. Tey include he auhoriy o regulae he naional economy, build a naional posal sysem, creae com-prehensive immigraion and inellecual propery regulaion, mainain a miliary, and raise and spend money.
2 Center for American Progress | The Fake James Madison
Tis las power, he auhoriy o raise and spend money, is among Congress’s broades powers. Under he Consiuion, naional leaders are ree o spend money in any way hey choose so long as hey do so o “provide or he common deense and general welare o he Unied Saes.”
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For his reason, laws such as Medicare and Social Securiy are obviously consiuional because hey boh raise and spend money o he benefi o all Americans upon heir reiremen.Many members o Congress, however, do no believe he Consiuion’s words mean wha hey say hey mean. Consider he words o Sen. Rand Paul (R-KY), who recenly explained he origin o he increasingly common belie ha Congress’s consiuional spending power is so small ha i can be drowned in a bahub:
I you read [James] Madison, Madison will tell you what he thought o the Welare Clause. He said, “Yeah, there is a General Welare Clause, but i we meant that you can do anything, why would we have listed the enumerated powers?” Really, the Welare 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 conservaives believe Congress’s power o collec axes and “provide or he common deense and general welare o he Unied Saes” really only enables Congress o build pos offices or und wars or ake oher acions expressly auhorized by some oher par o he Consiuion. According o his view, he spending power is noas i is almos universally undersood
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isel an independen enumeraed power auhorizing Congress o spend money.Paul’s undersanding o he Spending Clause is no simply he idiosyncraic view o an oulier senaor. Indeed, here is srong reason o believe his view is shared by he majoriy o his caucus. In he lead-up o he 2010 miderm elecions, congressional Republicans released a “Pledge o America,” which broadly oulined 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 consiuional limis and auhoriies has allowed Congress o creae ineffecive and cosly programs ha add o he massive defici year afer year.”
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Tis language suggess ha many conservaives agree wih Sen. Paul ha Congress is somehow exceeding is consiuional auhoriy o spend money. Bu here is no sup-por or his view in consiuional ex or in Supreme Cour preceden. In is very firs decision o consider he issueis 1936 decision in
United States v. Butler
he Supreme Cour unanimously affirmed ha “he power o Congress o auhorize expendiure o public moneys or public purposes is no limied by he direc grans o legislaive power ound in he Consiuion,” as Sen. Paul would claim.
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Similarly, while he ex o he Consiuion esablishes ha “he exercise o he spend-ing power mus be in pursui o ‘he general welare,’” neiher Sen. Paul nor he Pledge cies examples o laws ha ail o mee his crierion.
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3 Center for American Progress | The Fake James Madison
Selectively reading Madison
While conservaives’ narrow undersanding o he spending power finds no suppor in he ex o he Consiuion or in he Supreme Cour’s decisions, Sen. Paul is correc ha i does have one very amous supporer. In an 1831 missive, ormer Presiden James Madison claimed ha he bes way o read he Spending Clause is o ignore is lieral meaning and impose an exra-exual limi on Congressional power:
With respect to the words “general welare,” 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 proos was not contemplated by its creators.
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Sen. Paul suggess ha Madison’s exra-exual limi is boh auhoriaive and bindingeven i i means ha programs ranging rom Social Securiy o Medicare o Pell Grans mus all cease o exis. Bu i is a misake o assume ha Madison’s preerred consruc-ion o he Spending Clause mus resric modern-day congressional acion. Firs o all, even he mos prominen supporers o “originalism”he belie ha he Consiuion mus be read exacly as i was undersood a he ime i was writenrejec he view ha an individual ramer’s inenions can change consiuional meaning. As he naion’s leading originalis, Supreme Cour Jusice Anonin Scalia, explains, “I don’ care i he ramers o he Consiuion had some secre meaning in mind when hey adoped is words. I ake he words as hey were promulgaed o he people o he Unied Saes, and wha is he airly undersood meaning o hose words.”
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Indeed, Madison himsel would have been dismayed by he claim ha an esablished undersanding o he Consiuion mus bend o his own singular views. Like Scalia, Madison rejeced he noion ha he ramers’ personal desires can deea he words hey acually commited o ex. As he explained o uure Presiden Marin Van Buren, “I am aware ha he documen mus speak or isel, and ha ha inenion canno be subsi-ued or [he inenion derived hrough] he esablished rules o inerpreaion.”
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Secondly, Madison embraced a way o inerpreing he Consiuion reminiscen o he evolving heories o consiuional inerpreaion ha are so widely decried by modern conservaives. Alhough Rep. Madison opposed on consiuional grounds he creaion o he Firs Bank o he Unied Saes in 1791, Presiden Madison signed ino law an ac creaing he Second Bank in 1816. He “recognized ha Congress, he Presiden, he Supreme Cour, and (mos imporan, by ailing o use heir amending power) he American people had or wo decades acceped” he Firs Bank, and he viewed his accepance as “a consrucion pu on he Consiuion by he naion, which, having made i, had he supreme righ o declare is meaning.”
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