Citation

 

"Social Spending Basics, Constitutional History." By James D. Agresti. Just Facts, February 6, 2008. Updated 3/12/14. http://justfacts.com/socialspending.basics.asp

 

Introductory Notes

 

This research contains basic facts about the constitutional history of social spending. For detailed facts, click here.

 

This is the first in a series of topics that will form our research on the issue of social spending. Future topics will include wide-ranging data and facts about federal, state and local expenditures, political stances, socioeconomic matters, media coverage, and fraud/waste.

 

Social Spending – Constitutional History

 

* The U.S. Constitution is the supreme legal authority in the United States. It is the written pact that established the U.S. government and vested it with certain powers. All Presidents, governors, and federal/state judges and legislators are "bound by Oath or Affirmation, to support" it.[1] [2]

 

* Article I, Section 8 of the Constitution states that Congress "shall have Power" to "provide for the common Defense and general Welfare of the United States…." In the same sentence following these words are 27 specific powers granted to the federal government such as coining money, enacting immigration laws, establishing Post Offices, issuing patents, and raising armies.[3]

 

* James Madison was the fourth President of the United States and is known as the "Father of the Constitution" for his central role in its formation.[4] [5] After the Constitution was written and before it was ratified, he wrote that the phrase "provide for the common Defense and general Welfare" was only applicable to the specific powers that followed it (such as coining money, raising armies, etc.). He said that to interpret the Constitution in any other way was "an absurdity."[6]

 

* Before the Constitution was ratified, it was protested in a New York newspaper that the phrase "provide for the general welfare" was not clearly defined and would give the federal government too much unrestricted power.[7] [8]

 

* In response, Alexander Hamilton, a member of the Constitutional Convention and later the first U.S. Treasury Secretary,[9] wrote an article asserting that this Section of the Constitution only confers "certain specified powers."[10]

 

* After the Constitution was ratified, Hamilton wrote a letter asserting that the phrase "general Welfare" was "as comprehensive as any that could have been used" and "embraces a vast variety of particulars, which are susceptible neither of specification nor of definition."[11]

 

* This stance caused a clash that led to the formation of the first two political parties in the United States: one led by Alexander Hamilton and the other led by James Madison and Thomas Jefferson (the primary author of the Declaration of Independence and third President of the U.S.).[12] [13] [14] [15] [16] [17]

 

* Conflict regarding the interpretation of the "general Welfare" clause spilled over into the 1800's, during which it was a recurring issue whether or not the federal government had the authority to subsidize various projects on the grounds they promoted the general welfare. Arguing that it did were Presidents John Quincy Adams,[18] [19] Millard Fillmore, and Abraham Lincoln.[20] [21] Arguing that it did not were Presidents James Madison,[22] [23] Thomas Jefferson,[24] [25] James Polk, and Grover Cleveland.[26] [27]

 

* In 1932, three years after the start of the Great Depression,[28] Democrat Franklin Delano Roosevelt was elected President of the United States.[29] He proposed and signed a variety of social spending and regulatory bills that were collectively referred to as the "New Deal." Among other items, these laws formed 21 new federal agencies,[30] gave money to people with financial hardships,[31] constructed federal housing projects,[32] and provided low interest loans to help individuals in paying their mortgages.[33]

 

* Much of this legislation was challenged in court, and between January 1935 and May 1936, the Supreme Court ruled on ten such major cases. In eight of these, the laws were stricken down in part or entirety for overstepping the bounds of power granted to the federal government in the Constitution.[34]

 

* In 1937, Roosevelt proposed a bill that would have allowed him to up to appoint six more justices to Supreme Court so as to give his programs "a favorable majority."[35] [36] [37] [38] When he announced this proposal, he stated that the framers of the Constitution gave Congress "ample broad powers" to provide for the "general welfare," and that the Supreme Court was

 

reading into the Constitution words and implications which are not there, and which were never intended to be there.

 

He also stated:

 

Our difficulty with the Court today rises not from the Court as an institution but from the human beings within it.[39]

 

* Seven years before this, as the governor of New York, Roosevelt stated that

 

almost every new or old problem of government must be solved … by each State in its own way. There are many glaring examples where exclusive Federal control is manifestly against the scheme and intent of our Constitution.[40]

 

* In the four month period after Roosevelt announced his bill to alter the Supreme Court,[41] the Court ruled in six cases concerning New Deal legislation. In all of these decisions, the Court voted to uphold the acts under consideration. Five of the six cases were decided by a 5 to 4 margin.[42] [43] [44] [45] [46] [47] [48]

 

* In one such case, the Supreme Court upheld an act imposing new taxes that were ultimately given to unemployed people.[49] [50] In this ruling, the majority wrote that given the unemployment crisis, the federal government was justified in promoting "the general welfare."[51] [52]

 

* Justices Owen Roberts and Charles Hughes were two of the five judges who joined in this ruling.[53] One year before this, Justice Roberts joined in a ruling that stated the Constitution "made no grant of authority to Congress to legislate substantively for the general welfare...."[54] A year before this, Justice Roberts and Justice Hughes joined in a ruling that stated: "Extraordinary conditions do not create or enlarge constitutional power."[55]

 

* One month after the last of these decisions was issued, Roosevelt's bill to alter the Supreme Court was defeated in the Senate Judiciary Committee.[56] [57] [58] Over the next two years, all of the justices that generally found the New Deal programs to be unconstitutional either retired or passed on.[59] By 1944, seven of the nine justices on the Supreme Court had been appointed by Roosevelt,[60] and over the next half century the Supreme Court did not rule any major social spending program to be unconstitutional.[61]

_______

* In 2012, the federal government spent 60% of its finances on housing and community services, welfare and social services, recreation and culture, health, education, retirement benefits, disability benefits and unemployment benefits. This amounts to $2.255 trillion or an average of $18,623 for every household in the U.S.[62]

 

† Social spending includes housing and community services, welfare and social services, recreation and culture, health, education, retirement benefits, disability benefits and unemployment benefits.

‡ National defense includes military spending and veterans' benefits.

§ General government and debt service includes the executive & legislative branches, tax collection, financial management, and interest payments.

# Economic affairs includes transportation, general economic & labor affairs, agriculture, natural resources, energy, and space.

£ Public order and safety includes police, fire, law courts, and prisons.

[63]

 

Sources

 

[1] Constitution of the United States. Signed September 17, 1787. http://justfacts.com/constitution.asp

 

Article 6, Clause 2:

 

This 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

 

Article VI, Clause 3:

 

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Article 1, Section 2, Clause 8: "Before he enter on the Execution of his Office, [the President] shall take the following Oath or Affirmation…:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

 

[2] The Federalist Papers. By Alexander Hamilton, John Jay and James Madison. October 27, 1787- May 28, 1788. http://www.gutenberg.org/dirs/etext98/feder10a.txt

 

Federalist Paper 1, By Alexander Hamilton. October 27, 1787:

 

AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

 

Federalist Paper 2, By John Jay, Alexander Hamilton. October 31, 1787:

 

Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.

 

[3] Constitution of the United States. Signed September 17, 1787. http://justfacts.com/constitution.asp

 

Article I, Section 8:

 

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;

 

To borrow Money on the credit of the United States {Specific power #1};

 

To regulate Commerce with foreign Nations {2} , and among the several States {3}, and with the Indian Tribes {4};

 

To establish an uniform Rule of Naturalization {5}, and uniform Laws on the subject of Bankruptcies throughout the United States {6};

 

To coin Money {7}, regulate the Value thereof {8}, and of foreign Coin {9}, and fix the Standard of Weights and Measures {10};

 

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States {11};

 

To establish Post Offices {12} and post Roads {13};

 

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries {14};

 

To constitute Tribunals inferior to the supreme Court {15};

 

To define and punish Piracies and Felonies committed on the high Seas {16}, and Offences against the Law of Nations {17};

 

To declare War {18}, grant Letters of Marque and Reprisal {19}, and make Rules concerning Captures on Land and Water {20};

 

To raise and support Armies {21}, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

 

To provide and maintain a Navy {22};

 

To make Rules for the Government and Regulation of the land and naval Forces {23};

 

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions {24};

 

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States {25}, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

 

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States {26}, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings {27};--And

 

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 in the Government of the United States, or in any Department or Officer thereof.

 

[4] Article: "Madison, James." Contributor: Robert J. Brugger (Ph.D., Editor, Maryland Historical Magazine, Maryland Historical Society). World Book Encyclopedia, 2007 Deluxe Edition.

 

Madison, James (1751-1836), the fourth president of the United States, is often called the Father of the Constitution. He played a leading role in the Constitutional Convention of 1787, where he helped design the checks and balances that operate among Congress, the president, and the Supreme Court. He also helped create the U.S. federal system, which divides power between the central government and the states.

 

[5] Book: The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties. Edited by Patrick T. Conley & John P. Kaminski. Madison House Publishers, 1992. Pages 461-514: "The Bill of Rights: A Bibliographic Essay." By Gaspare J. Saladino. Page 484:

 

The best historical treatments of the legislative history of the Bill of Rights in the first federal Congress are… [six works mentioned]. All agree that James Madison, against considerable odds, took the lead in the House of Representatives, and that without his efforts there probably would have been no Bill of Rights. Madison's amendments, a distillation of those from the state conventions (especially Virginia's) were, for the most part, those that the House eventually adopted.

 

[6] The Federalist Papers. By Alexander Hamilton, John Jay and James Madison. October 27, 1787- May 28, 1788. http://www.gutenberg.org/dirs/etext98/feder10a.txt

 

Federalist Paper 41, By James Madison. January 19, 1788:

 

It has been urged and echoed, that the 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," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

 

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

 

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

 

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation! PUBLIUS.

 

[7] Book: The Federalist. Edited with an introduction and notes by Jacob E. Cooke. Wesleyan University Press, 1961. Page xi:

 

The Federalist, addressed to the People of the State of New York, was occasioned by the objections of many New Yorkers to the Constitution which had been proposed… [T]he pages of New York newspapers were filled with articles denouncing the new frame of government.

 

[8] Book: The AntiFederalist Papers. Edited with an introduction by Morton Borden. Michigan State University Press, 1965. Antifederalist Paper 32, By Brutus. Published December 27, 1787 in The New-York Journal. [Regarding the proposed constitution, Article I, Section 8, Clause 1: "common defense and general welfare," and Clause 18: "make all Laws which shall be necessary and proper."]

 

It is therefore evident, that the legislature under this constitution may pass any law which they think proper. … Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy. It opens the door to a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, [and] eat up their substance…. 

 

Antifederalist Paper 33, By Brutus. Published December 27, 1787 in The New-York Journal. [Regarding the proposed constitution, Article I, Section 8, Clause 1: "Power To lay and collect Taxes" to "provide for the common Defence and general Welfare."]

 

This power, exercised without limitation, will introduce itself into every corner of the city, and country… To provide for the general welfare is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare… The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.

 

[9] Articles: "Hamilton, Alexander." Encyclopædia Britannica Ultimate Reference Suite 2004.

 

[10] The Federalist Papers. By Alexander Hamilton, John Jay and James Madison. October 27, 1787- May 28, 1788. http://www.gutenberg.org/dirs/etext98/feder10a.txt

 

Federalist Paper 33, By Alexander Hamilton. January 3, 1788:

 

THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature 'to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof'; and the second clause of the sixth article declares, 'that the Constitution and the laws of the United States made IN  PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.'

 

These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly [exaggeratedly] called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.

 

[11] Letter: "Report on Manufactures." By Alexander Hamilton. December 5, 1791.

http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html

 

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.

 

[12] Article: "Hamilton, Alexander." Contributor: Richard Brookhiser (Senior Editor, National Review; author of Alexander Hamilton, American). World Book Encyclopedia, 2007 Deluxe Edition.

 

In the early 1790's, the conflicts between Hamilton and a group led by Jefferson and Madison resulted in the development of the nation's first two political parties.

 

[13] "Letter from Thomas Jefferson to Albert Gallatin." June 16, 1817. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php

?title=808&chapter=88365&layout=html&Itemid=27

 

You will have learned that an act for internal improvement, after passing both Houses, was negatived by the President. The act was founded, avowedly, on the principle that the phrase in the constitution which authorizes Congress "to lay taxes, to pay the debts and provide for the general welfare," was an extension of the powers specifically enumerated to whatever would promote the general welfare; and this, you know, was the federal doctrine. Whereas, our tenet ever was, and, indeed, it is almost the only landmark which now divides the federalists from the republicans, that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated….

 

[14] Article: "Federalist Party." Contributor: Donald R. Hickey (Ph.D., Professor of History, Wayne State College). World Book Encyclopedia, 2007 Deluxe Edition.

 

The Federalist Party developed under the leadership of Alexander Hamilton, Washington's secretary of the treasury. Hamilton believed that the Constitution should be loosely interpreted to build up federal power. … Thomas Jefferson and James Madison opposed Hamilton. Their followers became known as Democratic-Republicans.

 

[15] Article: "Federalist Party." Encyclopædia Britannica Ultimate Reference Suite 2004.

 

President George Washington was able to exercise nonpartisan leadership during the first few years of the new government (begun in 1789). Strong division, however, developed over the fiscal program of the secretary of the Treasury, Alexander Hamilton, whom Washington supported. … the opposition, organized by James Madison and Thomas Jefferson beginning in 1791, became the Republican Party, later known as the National Republican, and eventually as the modern Democratic Party.

 

[16] Article: "Jefferson, Thomas." Contributor: Noble E. Cunningham, Jr. (Ph.D., Curators' Professor Emeritus of History, University of Missouri, Columbia). World Book Encyclopedia, 2007 Deluxe Edition.

 

Jefferson led the Democratic-Republicans (called Republicans at the time, though some historians regard it as the origin of the modern Democratic Party).

 

[17] Article: "Jefferson, Thomas." Contributor: Noble E. Cunningham, Jr. (Ph.D., Curators' Professor Emeritus of History, University of Missouri, Columbia). World Book Encyclopedia, 2007 Deluxe Edition.

 

Congress appointed a committee to draw up a declaration of independence. … The committee unanimously asked Jefferson to prepare the draft and approved it with few changes. … The members of Congress made some changes, but, as Richard Lee said: "the Thing in its nature is so good that no cookery can spoil the dish for the palates of freemen."

 

[18] Book: Life and Public Services of John Quincy Adams, Sixth President of the United States. By William H. Seward. C. M. Saxton, Barker & Co., 1860. Page 142:

 

While a candidate for the presidency, Mr. Adams received a letter inquiring his views on the subject of internal improvement. The following is an extract from his reply :—

 

"On the 23rd of Feb., 1807, I offered, in the Senate of the United States, of which I was then a member, the first resolution, as I believe, that ever was presented to Congress, contemplating a general system of internal improvement. I thought that Congress possessed the power of appropriating money to such improvement, and of authorizing the works necessary for making it—subject always to the territorial rights of the several States in or through which the improvement is to be made, to be secured by the consent of their Legislatures, and to proprietary rights of individuals, to be purchased or indemnified. I still hold the same opinions; and, although highly respecting the purity of intention of those who object, on constitutional grounds, to the exercise of this power, it is with heartfelt satisfaction that I perceive those objections gradually yielding to the paramount influence of the general welfare. Already have appropriations of money to great objects of internal improvement been freely made; and I hope we shall both live to see the day, when the only question of our statesmen and patriots, concerning the authority of Congress to improve, by public works essentially beneficent, and beyond the means of less than national resources, the condition of our common country, will be how it ever could have been doubted."

 

[19] Book: Life of James Knox Polk and a History of His Administration. By John S. Jenkins. Burnett & Bostwick, 1854. Pages 337-355: "Special Message On Internal Improvements, December 15th, 1847. To the House of Representatives." Pages 347-8:

 

During the four succeeding years embraced by the administration of President Adams, the power not only to appropriate money, but to apply it, under the direction and authority of the General Government, as well to the construction of roads as to the improvement of harbors and rivers, was fully asserted and exercised.

 

Among other acts assuming the power, was one passed on the twentieth of May, 1826, entitled "An act for improving certain harbors and the navigation of certain rivers and creeks, and for authorizing surveys to be made of certain bays, sounds, and rivers therein mentioned." By that act large appropriations were made, which were to be "applied under the direction of the President of the United States" to numerous improvements in ten of the States. This act, passed thirty-seven years after the organization of the present Government, contained the first appropriation ever made for the improvement of a navigable river, unless it be small appropriations for examinations and surveys in 1820. During the residue of that Administration many other appropriations of a similar character were made, embracing roads, rivers, harbors, and canals, and objects claiming the aid of Congress multiplied without number.

 

[20] Book: Biography of Millard Fillmore. By Ivory Chamberlain & Thomas Moses Foote. Pages 156-177 contain Fillmore's first annual message (December 2, 1850). Page 173:

 

I entertain no doubt of the authority of Congress to make appropriations for leading objects in that class of public works comprising what are usually called works of internal improvement. This authority I suppose to be derived chiefly from the power of regulating commerce with foreign nations, and among the States, and the power of levying and collecting imposts.

 

[21] Book: Life of Abraham Lincoln, Presenting His Early History, Political Career, and Speeches in and out of Congress; Also, a General View of His Policy as President of the United States… Edited by Joseph H. Barrett. Moore, Wilstach & Baldwin, 1865. Pages 90-100: [Speech delivered before the House of Representatives by Abe Lincoln on June 20, 1848.] Page 95:

 

Mr. Chairman, on the third position of the message (the Constitutional question) I have not much to say. Being the man I am, and speaking when I do, I feel that in any attempt at an original, Constitutional argument, I should not be, and ought not to be, listened to patiently. The ablest and the best of men have gone over the whole ground long ago. I shall attempt but little more than a brief notice of what some of them have said.

 

Pages 96-97:

 

This Constitutional question will probably never be better settled than it is, until it shall pass under judicial consideration; but I do think that no man who is clear on this question of expediency need feel his conscience much pricked upon this.

 

Page 98:

 

I have already said that no one who is satisfied of the expediency of making improvements need be much uneasy in his conscience about its constitutionality. I wish now to submit a few remarks on the general proposition of amending the Constitution. As a general rule, I think we would do much better to let it alone. No slight occasion should tempt us to touch it. Better not take the first step, which may lead to a habit of altering it. Better rather habituate ourselves to think of it as unalterable. It can scarcely be made better than it is. New provisions would introduce new difficulties, and thus create and increase appetite for further change. No, sir; let it stand as it is. New hands have never touched it. The men who made it have done their work, and have passed away. Who shall improve on what they did?

 

[22] Book: Life of James Knox Polk and a History of His Administration. By John S. Jenkins. Burnett & Bostwick, 1854. Pages 337-355: "Special Message On Internal Improvements, December 15th, 1847. To the House of Representatives." Page 351:

 

President Madison, in a message to the House of Representatives of the 3rd of March, 1817, assigning his objections to a bill entitled "An act to set apart and pledge certain funds for internal improvements," declares that "the power to regulate commerce among the several States cannot include a power to construct roads and canals, and to improve the navigation of water-courses, in order to facilitate, promote, and secure such commerce, without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress."

 

{See next footnote for the section of the Constitution Madison was referring to.}

 

[23] Constitution of the United States. Signed September 17, 1787. http://justfacts.com/constitution.asp

 

Article I, Section 8:

 

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 …

 

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…

 

[24] Book: The Life of Thomas Jefferson, Third President of the United States. By George Tucker. Volume 2. Carey, Lea & Blanchard, 1837. Page 403:

 

At the session of Congress of 1816-17, an act for some internal improvement having passed both houses of Congress, it was negatived by Mr. Madison as unconstitutional. In a letter to Mr. Gallatin, then in Paris, dated June 16, 1817, he thus expresses his opinion on one of the most controverted questions under the constitution....

 

[25] "Letter from Thomas Jefferson to Albert Gallatin." June 16, 1817. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php

?title=808&chapter=88365&layout=html&Itemid=27

 

You will have learned that an act for internal improvement, after passing both Houses, was negatived by the President. The act was founded, avowedly, on the principle that the phrase in the constitution which authorizes Congress "to lay taxes, to pay the debts and provide for the general welfare," was an extension of the powers specifically enumerated to whatever would promote the general welfare; and this, you know, was the federal doctrine. Whereas, our tenet ever was, and, indeed, it is almost the only landmark which now divides the federalists from the republicans, that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been 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. I think the passage and rejection of this bill a fortunate incident. Every State will certainly concede the power; and this will be a national confirmation of the grounds of appeal to them, and will settle forever the meaning of this phrase, which, by a mere grammatical quibble, has countenanced the General Government in a claim of universal power. For in the phrase, "to lay taxes, to pay the debts and provide for the general welfare," it is a mere question of syntax, whether the two last infinitives are governed by the first or are distinct and co-ordinate powers; a question unequivocally decided by the exact definition of powers immediately following.

 

[26] Book: Life of James Knox Polk and a History of His Administration. By John S. Jenkins. Burnett & Bostwick, 1854. Pages 337-355: "Special Message On Internal Improvements, December 15th, 1847. To the House of Representatives." Page 354:

 

In the progress of the discussions upon this subject the power to regulate commerce seems now to be chiefly relied upon, especially in reference to the improvement of harbors and rivers. In relation to the regulation of commerce, the language of the grant in the constitution is, "Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes."

 

[27] Book: The Writings and Speeches of Grover Cleveland. Edited by George F. Parker. Cassell Publishing, 1892. Pages 449-451:

 

February 16, 1887.

To THE HOUSE OF REPRESENTATIVES :

 

I return without my approval House bill number ten thousand two hundred and three, entitled "An Act to enable the Commissioner of Agriculture to make a special distribution of seeds in drought-stricken counties of Texas, and making an appropriation therefor."

 

It is represented that a long-continued and extensive drought has existed in certain portions of the State of Texas, resulting in a failure of crops and consequent distress and destitution.

 

Though there has been some difference in statements concerning the extent of the people's needs in the localities thus affected, there seems to be no doubt that there has existed a condition calling for relief; and I am willing to believe that, notwithstanding the aid already furnished, a donation of seed-grain to the farmers located in this region, to enable them to put in new crops, would serve to avert a continuance or return of an unfortunate blight.

 

And yet I feel obliged to withhold my approval of the plan as proposed by this bill, to indulge a benevolent and charitable sentiment through the appropriation of public funds for that purpose.

 

I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people.

 

The friendliness and charity of our countrymen can always be relied upon to relieve their fellow-citizens in misfortune. This has been repeatedly and quite lately demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthen the bonds of a common brotherhood.

 

It is within my personal knowledge that individual aid has, to some extent, already been extended to the sufferers mentioned in this bill. The failure of the proposed appropriation of ten thousand dollars additional, to meet their remaining wants, will not necessarily result in continued distress if the emergency is fully made known to the people of the country.

 

It is here suggested that the Commissioner of Agriculture is annually directed to expend a large sum of money for the purchase, propagation, and distribution of seeds and other things of this description, two-thirds of which are, upon the request of senators, representatives, and delegates in Congress, supplied to them for distribution among their constituents.

 

The appropriation of the current year for this purpose is one hundred thousand dollars, and it will probably be no less in the appropriation for the ensuing year. I understand that a large quantity of grain is furnished for such distribution, and it is supposed that this free apportionment among their neighbors is a privilege which may be waived by our senators and representatives.

 

If sufficient of them should request the Commissioner of Agriculture to send their shares of the grain thus allowed them, to the suffering farmers of Texas, they might be enabled to sow their crops; the constituents, for whom in theory this grain is intended, could well bear the temporary deprivation, and the donors would experience the satisfaction attending deeds of charity.

 

GROVER CLEVELAND.

 

[28] Article: "Great Depression." Kris James Mitchener (Ph.D., Assistant Professor of Economics, Santa Clara University). World Book Encyclopedia, 2007 Deluxe Edition.

 

In the United States, the decline in industrial production began in the second half of 1929. The economic downturn worsened in October 1929, when values of stocks dropped dramatically.

 

[29] Article: "Roosevelt, Franklin Delano." Contributor: James T. Patterson (Ph.D., Professor of History, Brown University). World Book Encyclopedia, 2007 Deluxe Edition.

 

[30] Article: "New Deal." Contributor: David A. Shannon (Ph.D., Former Professor of History, University of Virginia). Graphic: "Leading New Deal Agencies." This included the Agricultural Adjustment Administration, Civilian Conservation Corps, Commodity Credit Corporation, Farm Credit Administration, Federal Communications Commission, Federal Crop Insurance Corporation, Federal Deposit Insurance Corporation, Federal Emergency Relief Administration, Federal Housing Administration, Farm Security Administration, Home Owners Loan Corporation, National Labor Relations Board, National Recovery Administration, National Youth Administration, Public Works Administration, Rural Electrification Administration, Securities and Exchange Commission, Social Security Board, Tennessee Valley Authority, United States Housing Authority, Works Progress Administration.

 

[31] Article: "New Deal." Contributor: David A. Shannon (Ph.D., Former Professor of History, University of Virginia). "The Federal Emergency Relief Administration provided the states with money for the needy."

 

[32] Article: "New Deal." Contributor: David A. Shannon (Ph.D., Former Professor of History, University of Virginia). The United States Housing Act of 1937 "provided money for more federal public housing projects."

 

[33] Article: "New Deal." Contributor: David A. Shannon (Ph.D., Former Professor of History, University of Virginia). "The Home Owners Loan Corporation (HOLC) provided money at low interest for persons struggling to pay mortgages."

 

[34] Book: The American Constitution: Its Origins and Development. By Alfred H. Kelly & Winfred A. Harbison. Third edition. W. W. Norton & Company, 1963. Pages 734-750: [Stricken down were Section 9 (c) of the National Industrial Recovery Act, the National Recovery Act in its entirety, the Railroad Pension Act, the Farm Mortgage law, the Agricultural Adjustment Act and subsequent amendments to it, the Bituminous Coal Act, and the Municipal Bankruptcy Act. Upheld were the Tennessee Valley Authority Act and emergency monetary enactments of 1933.]

 

[35] Book: The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. By William E. Leuchtenberg. Oxford University Press, 1995. Page 86:

 

At a Cabinet meeting on July 11, 1935… Secretary of the Interior Harold L. Ickes noted in his diary:

 

The Attorney General went so far as to say that if the Court went against the Government, the number of justices should be increased at once so as to give a favorable majority. As a matter of fact, the President suggested this possibility to me during our interview on Thursday, and I told him that is precisely what ought to be done.

 

[36] Book: The American Constitution: Its Origins and Development. By Alfred H. Kelly & Winfred A. Harbison. Third edition. W. W. Norton & Company, 1963. Pages 757-8: [On February 5, 1937, Roosevelt presented a bill to] "reorganize the federal judiciary. … [The plan was] "clearly constitutional, since Congress specifically had power to fix the size of all federal courts."

 

[37] Book: Documents of American History. Volume 2 (since 1898). Edited by Henry Steele Commager. Prentice-Hall, 1973. Page 382:

 

PROPOSED BILL.

Be it enacted, That—

(a) When any judge of a court of the United States, appointed to hold his office during good behavior, has heretofore or hereafter attained the age of seventy years and has held a commission or commissions as judge of any such court or courts at least ten years, continuously or otherwise, and within six months thereafter has neither resigned nor retired, the President, for each so judge who has not so resigned or retired, shall nominate, and by and with the advice and consent of the Senate, shall appoint one additional judge to the court to which the former is commissioned…

(b) … No more than fifty judges shall be appointed [under subsection (a)], nor shall any judge be so appointed if such appointed would result in (1) more than fifteen members of the Supreme Court of the United States….

 

[38] Book: Freedom from Fear: The American People in Depression and War, 1929-1945. By David M. Kennedy. Oxford University Press, 1999. Page 327: [Age of the four judges who generally found Roosevelt's bills to be unconstitutional: McReynolds 75, Sutherland 74, Van Devanter 77, and Butler 70.]

 

[39] Book: Documents of American History. Volume 2 (since 1898). Edited by Henry Steele Commager. Prentice-Hall, 1973. Pages 383-7:

 

ADDRESS BY THE PRESIDENT OF THE UNITED STATES, MARCH 9, 1937 …

 

But the framers went further. Having in mind that in succeeding generations other problems then undreamed of would become national problems, they gave the Congress the ample broad powers to "levy taxes *** and provide for the common defense and general welfare of the United States." …

 

The Court … has improperly set itself up as a third House of Congress—a superlegislature, as one of the Justices has called it—reading into the Constitution words and implications which are not there, and which were never intended to be there. We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself.…

 

Our difficulty with the Court today rises not from the Court as an institution but from the humans beings within it.

 

[40] Address of Franklin Delano Roosevelt as Governor of New York, March 2, 1930. http://www.lexrex.com/enlightened/writings/fdr_address.htm

 

On such a small foundation have we erected the whole enormous fabric of Federal Government which costs us now $3,500,000,000 every year, and if we do not halt this steady process of building commissions and regulatory bodies and special legislation like huge inverted pyramids over every one of the simple Constitutional provisions, we shall soon be spending many billions of dollars more. …

 

It must be obvious that almost every new or old problem of government must be solved, if it is to be solved to the satisfaction of the people of the whole country, by each State in its own way. There are many glaring examples where exclusive Federal control is manifestly against the scheme and intent of our Constitution.

 

[41] Book: The American Constitution: Its Origins and Development. By Alfred H. Kelly & Winfred A. Harbison. Third edition. W. W. Norton & Company, 1963. Pages 757-8: [On February 5, 1937, Roosevelt presented a bill to] "reorganize the federal judiciary."

 

[42] Book: The American Constitution: Its Origins and Development. By Alfred H. Kelly & Winfred A. Harbison. Third edition. W. W. Norton & Company, 1963. Page 755: "In a remarkable series of opinions beginning in 1937, [the Supreme Court] accepted all of the outstanding New Deal reform measures, including much legislation passed to replace that which the Court had invalidated before 1937."

 

[43] Ruling: West Coast Hotel v. Parrish. U.S. Supreme Court, March 29, 1937. Case 300 U.S. 379. Decided 5-4. Majority: Hughes, Brandeis, Benjamin N. Cardozo, Roberts, Stone. Dissenting: Sutherland, Butler, McReynolds, Van Devanter.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=300&page=379

 

[44] Ruling: National Labor Relations Board v. Jones and Laughlin Steel. U.S. Supreme Court, April 12, 1937. Case 301 U.S. 1. Decided 5-4. Majority: Hughes, Brandeis, Cardozo, Roberts, Stone. Dissenting: McReynolds, Butler, Sutherland, Van Devanter.

http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/301/1.html

 

[45] Ruling: National Labor Relations Board v. Friedman-Harry Marks Clothing Company. U.S. Supreme Court, April 12, 1937. Case 301 U.S. 58. Decided 5-4. Majority: Hughes, Cardozo, Roberts, Stone, Brandeis. Dissenting: McReynolds, Van Devanter, Sutherland, Butler.

http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/301/58.html

 

[46] Ruling: Associated Press v. National Labor Relations Board. U.S. Supreme Court, April 12, 1937. Case 301 U.S. 103. Decided 5-4. Majority: Roberts, Hughes, Brandeis, Stone, Cardozo. Dissenting: Sutherland, Van Devanter, McReynolds, Butler. http://caselaw.lp.findlaw.com/scripts/getcase.pl?

navby=case&court=us&vol=301&page=103

 

[47] Ruling: Stewart Machine Company v. Davis. U.S. Supreme Court, May 24, 1937. Case 301 U.S. 548. Decided 5-4. Majority: Cardozo, Brandeis, Hughes, Roberts, Stone. Dissenting: McReynolds. Separate dissent: Sutherland, Van Devanter. Separate dissent: Butler.

http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/301/548.html

 

[48] Ruling: Helvering v. Davis. U.S. Supreme Court, May 24, 1937. Case 301 U.S. 619. Decided 7-2. Majority: Cardozo, Hughes, Brandeis, Roberts, Stone, Sutherland, Van Devanter. Dissenting: McReynolds, Butler. http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/301/619.html

 

[49] Ruling: Stewart Machine Company v. Davis. U.S. Supreme Court, May 24, 1937. Case 301 U.S. 548. Decided 5-4. Majority: Cardozo, Brandeis, Hughes, Roberts, Stone. Dissenting: McReynolds. Separate dissent: Sutherland, Van Devanter. Separate dissent: Butler.

http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/301/548.html

 

The Social Security Act… is divided into eleven separate titles, of which only titles IX and III are so related to this case as to stand in need of summary.

 

[50] "The Social Security Act of 1935." United States Congress, August 14, 1935. http://www.ssa.gov/history/35act.html

 

TITLE III-GRANTS TO STATES FOR UNEMPLOYMENT COMPENSATION ADMINISTRATION APPROPRIATION

SECTION 301. For the purpose of assisting the States in the administration of their unemployment compensation laws, there is hereby authorized to be appropriated, for the fiscal year ending June 30, 1936, the sum of $4,000,000, and for each fiscal year thereafter the sum of $49,000,000, to be used as hereinafter provided.

PAYMENTS TO STATES

SEC. 302. (a) The Board shall from time to time certify to the Secretary of the Treasury for payment to each State which has an unemployment compensation law approved by the Board under Title IX, such amounts as the Board determines to be necessary for the proper administration of such law during the fiscal year in which such payment is to be made. …

 

TITLE IX- TAX ON EMPLOYERS OF EIGHT OR MORE

SECTION 901. On and after January 1, 1936, every employer (as defined in section 907) shall pay for each calendar year an excise tax, with respect to having individuals in his employ, equal to the following percentages of the total wages (as defined in section 907) payable by him (regardless of the time of payment) with respect to employment (as defined in section 907) during such calendar year:
(1) With respect to employment during the calendar year 1936 the rate shall be 1 per centum;
(2) With respect to employment during the calendar year 1937 the rate shall be 2 per centum;
(3) With respect to employment after December 31, 1937, the rate shall be 3 per centum.

CREDIT AGAINST TAX

Section 902. The taxpayer may credit against the tax imposed by section 901 the amount of contributions, with respect to employment during the taxable year, paid by him (before the date of filing of his return for the taxable year) into an unemployment fund under a State law. The total credit allowed to a taxpayer under this section for all contributions paid into unemployment funds with respect to employment during such taxable year shall not exceed 90 per centum of the tax against which it is credited, and credit shall be allowed only for contributions made under the laws of States certified for the taxable year as provided in section 903. ….

Section 905. (a) The tax imposed by this title shall be collected by the Bureau of Internal Revenue under the direction of the Secretary of the Treasury and shall be paid into the Treasury of the United States as internal- revenue collections.

 

[51] Ruling: Stewart Machine Company v. Davis. U.S. Supreme Court, May 24, 1937. Case 301 U.S. 548. Decided 5-4. Majority: Cardozo, Brandeis, Hughes, Roberts, Stone. Dissenting: McReynolds. Separate dissent: Sutherland, Van Devanter. Separate dissent: Butler.

http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/301/548.html

 

To draw the line intelligently between duress and inducement, there is need to remind ourselves of facts as to the problem of unemployment that are now matters of common knowledge. West Coast Hotel Co. v. Parrish ( March 29, 1937) 300 U.S. 379 , 57 S.Ct. 578. The relevant statistics are gathered in the brief of counsel for the government. Of the many available figures a few only will be mentioned. During the years 1929 to 1936, when the country was passing through a cyclical depression, the number of the unemployed mounted to unprecedented heights. Often the average was more than 10 million; at times a peak was attained of 16 million or more. Disaster to the breadwinner meant disaster to dependents. Accordingly the roll of the unemployed, itself formidable enough, was only a partial roll of the destitute or needy. The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed [301 U.S. 548, 587]   and their dependents is a use for any purpose narrower than the promotion of the general welfare. Cf. United States v. Butler, 297 U.S. 1, 65 , 66 S., 56 S.Ct. 312, 319, 102 A.L.R. 914; Helvering v. Davis, 301 U.S. 619, 672 , 57 S.Ct. 904, 81 L.Ed. --, decided herewith. The nation responded to the call of the distressed. Between January 1, 1933, and July 1, 1936, the states (according to statistics submitted by the government) incurred obligations of $689,291,802 for emergency relief; local subdivisions an additional $775,675,366. In the same period the obligations for emergency relief incurred by the national government were $ 2,929,307,125, or twice the obligations of states and local agencies combined. According to the President's budget message for the fiscal year 1938, the national government expended for public works and unemployment relief for the three fiscal years 1934, 1935, and 1936, the stupendous total of $8,681,000,000. The parens patriae has many reasons-fiscal and economic as well as social and moral-for planning to mitigate disasters that bring these burdens in their train.

 

[52] Book: Crime and the Justice System in America: An Encyclopedia. Edited by Frank Schmalleger with Gordon M. Armstrong. Greenwood Publishing, 1997. Page 179:

 

PARENS PATRIAE. Literally, "parent of the country." This legal concept serves as the basis for state intervention when the state removes a delinquent from the hone of his or her parents. Effectible, parens patriae is an assumption of responsibility by the state for the welfare of the delinquent child.

 

[53] Ruling: Stewart Machine Company v. Davis. U.S. Supreme Court, May 24, 1937. Case 301 U.S. 548. Decided 5-4. Majority: Cardozo, Brandeis, Hughes, Roberts, Stone. Dissenting: McReynolds. Separate dissent: Sutherland, Van Devanter. Separate dissent: Butler.

http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/301/548.html

 

[54] Ruling: Carter v. Carter Coal Company. U.S. Supreme Court, May 18, 1936. Case 298 U.S. 238. Decided 6-3. Majority: Sutherland, Butler, McReynolds, Roberts, Van Devanter. Concurring: Hughes. Dissenting: Cardozo, Brandeis, Stone. http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?

page=us/298/238.html

 

The convention, however, declined to confer upon Congress power in such general terms; instead of which it carefully limited the powers which it thought wise to intrust to Congress by specifying them, thereby denying all others not granted expressly or by necessary implication. It made no grant of authority to Congress to legislate substantively for the general welfare, United States v. Butler, supra, 297 U.S. 1 , at page 64, 56 S.Ct. 312, 102 A.L.R. 914; and no such authority exists, save as the general welfare may be promoted by the exercise of the powers which are granted. Compare Jacobson v. Massachusetts, 197 U.S. 11, 22 , 25 S.Ct. 358, 3 Ann.Cas. 765. …

 

Replying directly to the suggestion advanced by counsel in Kansas v. Colorado {1907}, 206 U.S. 46, 89 , 90 S., 27 S.Ct. 655, 664, to the effect that necessary powers national in their scope must be found vested in Congress, though not expressly granted or essentially implied, this court said:

 

'But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the 10th Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should [298 U.S. 238, 294]   be granted by the people in the manner they had provided for amending that act.'

 

The determination of the Framers Convention and the ratifying conventions to preserve complete and unimpaired state self-government in all matters not committed to the general government is one of the plainest facts which emerges from the history of their deliberations. And adherence to that determination is incumbent equally upon the federal government and the states. It is safe to say that if, when the Constitution was under consideration, it had been thought that any such danger lurked behind its plain words, it would never have been ratified.

 

[55] Ruling: A.L.A. Schechter Poultry Corporation v. United States. U.S. Supreme Court, May 27, 1935. Case 295 U.S. 495. Decided 9-0. Majority: Hughes, Brandeis, Roberts, Sutherland, Van Devanter, McReynolds, Butler. Concurring: Cardozo, Stone. http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?

page=us/295/495.html

 

Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. … Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment- 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' …

 

Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry. In view of the scope of that broad declaration and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power. …

 

It is not the province of the Court to consider the economic advantages or disadvantages of such a centralized system. It is sufficient to say that the Federal Constitution does not provide for it….

 

Without in any way disparaging this motive, it is enough to say that the recuperative efforts of the federal government must be made in a manner consistent with the authority granted by the Constitution.

 

[56] Book: The American Constitution: Its Origins and Development. By Alfred H. Kelly & Winfred A. Harbison. Third edition. W. W. Norton & Company, 1963. Page 760: [On June 14th, the court packing bill was defeated (10-8) in the Senate Judiciary Committee.]

 

[57] Book: Freedom from Fear: The American People in Depression and War, 1929-1945. By David M. Kennedy. Oxford University Press, 1999. Page 332: "Ominously, a Gallup poll in the weeks just after the bombshell court message… showed a solid majority (53 percent) opposed to the president's Court proposal." Page 333: "New York Democratic governor Herbert Lehman, whom Roosevelt had once described as "my strong right arm," was among" those who "denounced the Roosevelt plan." [Democratic senator Burton Wheeler from Montana] "emerged as the Court plan's chief opponent in the Senate."

 

[58] Book: Documents of American History. Volume 2 (since 1898). Edited by Henry Steele Commager. Prentice-Hall, 1973. Pages 387-391:

 

ADVERSE REPORT FROM THE COMMITTEE ON THE JUDICIARY …

 

[I]t undermines the protection our constitutional system gives to minorities and is subversive of the rights of individuals. 

 

[Signed by the following Senators on the Judiciary Committee.]

 

William H. King (D)

Frederick Van Nuys (D)

Patrick McCarran (D)

Carl A. Hatch (D)

Edward R. Burke (D)

Tom Connally (D)

Joseph C. O'Mahoney (D)

William E. Borah (R)

Warren R. Austin (R)

Frederick Steiwer (R)

 

{Party affiliations found via online sources.}

 

[59] Book: The American Constitution: Its Origins and Development. By Alfred H. Kelly & Winfred A. Harbison. Third edition. W. W. Norton & Company, 1963. Page 760: [Justice Van Devanter retired in May 1937. Page 763: [Justice Sutherland resigned in January 1938.] Page 764: [Justice Butler passed on in November 1939. Justice McReynolds resigned in February 1941.]

 

[60] Article: "Roosevelt, Franklin Delano." Contributor: James T. Patterson (Ph.D., Professor of History, Brown University). World Book Encyclopedia, 2007 Deluxe Edition. "By 1944, so many justices had retired or died that all but two Court members were Roosevelt appointees."

 

[61] Book: Freedom from Fear: The American People in Depression and War, 1929-1945. By David M. Kennedy. Oxford University Press, 1999. Page 337:

 

The New Deal, especially its core program enacted in 1935, was now constitutionally safe. And for a least a half a century thereafter the Court did not overturn single piece of significant state or socioeconomic legislation. In the economic realm, at least, substantive due process was dead.

 

[62] Calculated with data from:

 

a) Table 3.16: "Government Current Expenditures by Function." U.S. Department of Commerce, Bureau of Economic Analysis. Last revised February 14, 2014. http://www.bea.gov/iTable/iTable.cfm...

 

b) Report: "Fiscal Year 2014 Historical Tables: Budget Of The U.S. Government." White House Office of Management and Budget. http://www.whitehouse.gov/sites/default/files/omb/...
Pages 50-59: "Table 3.1—Outlays by Superfunction and Function: 1940–2018."
Line item: "Veterans Benefits and Services."

 

c)  Dataset: "Average Number of People per Household, by Race and Hispanic Origin, Marital Status, Age, and Education of Householder: 2012." U.S. Census Bureau, November 2012. http://www.census.gov/hhes/families/data/cps2012.html
Total households = 121,084,000

 

NOTES:

- Per correspondence from the Bureau of Economic Analysis to Just Facts (March 8, 2011), spending for veterans' benefits is "included within those functions that best reflect the nature of the specific benefits programs managed by the agency." Per the White House Office of Management and Budget (Table 3.2: "Outlays by Function and Subfunction, 1962–2016." Accessed March 8, 2011 at http://www.whitehouse.gov/omb/budget/Historicals), "Veterans benefits and services" consist of "Income security for veterans," "Veterans education, training, and rehabilitation," "Hospital and medical care for veterans," "Veterans housing," and "Other veterans benefits and services." These all fall into categories that Just Facts categorizes as "Social spending." Thus, Just Facts subtracted the total "Veterans benefits and services" from the "Social spending" category and added this to the "National defense" category. Per the same correspondence from the Bureau of Economic Analysis, "The administrative expenses of the [Veterans' Affairs] agency … might be included within the General Public Service function." Because of the uncertainty implicit in this statement and the lack of such data from all sources known to Just Facts, we are unable to segregate this spending.

- Given the recent steep rise in the national debt, Just Facts has been asked why the portion of federal spending dedicated to "General government and debt service" has generally fallen since the mid-1990s. Major causes for this include (1) the recent steep rise in overall government spending (2) the recent low interest rates (3) the interest payments shown here do not include the interest due on government-held (a.k.a., "nonmarketable") debt, which as of February 28, 2011, has a 75% higher interest rate than publicly held debt ["Average Interest Rates on U.S. Treasury Securities." February 2011, U.S. Department of the Treasury. http://www.treasurydirect.gov/govt/rates/pd/avg/2011/2011_02.htm]. Facts regarding how and why the federal government keeps its books in this manner are covered in Just Facts' national debt research in the section entitled "Government Accounting."

- An Excel file containing the data and calculations is available upon request.

 

[63] Same as above.

 

© 2011 Just Facts

 

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