I ran across an excellent story on the Wall Street Journal that I want to share. It’s a very short read, but well worth it to anyone wanting to figure out how we got to the recent Supreme Court case upholding ObamaDon’tCare.
Elections indeed have consequences, especially as they relate to court appointments. If you haven’t already done so, I also recommend that you read “Men In Black” by Mark Levin to understand the history of judicial activism. But that’s an entirely different subject matter.
The article doesn’t mention a key argument stated by James Madison back in 1788 contained within the Federalist Paper No. 41:
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.”
This is important because it lays for the ages what the founding fathers intended with the taxation clause. It wasn’t meant to give authority to an overreaching federal government capable of using every excuse under the sun to tax the people.
Anyway, I didn’t mean to ramble. Let’s just get to this great article by Paul Moreno:
In 1935, Secretary of Labor Frances Perkins was fretting about finding a constitutional basis for the Social Security Act. Supreme Court Justice Harlan Fiske Stone advised her, “The taxing power, my dear, the taxing power. You can do anything under the taxing power.
Last week, in his ObamaCare opinion, NFIB v. Sebelius, Chief Justice John Roberts gave Congress the same advice—just enact regulatory legislation and tack on a financial penalty, as in failure to comply with the individual insurance mandate. So how did the power to tax under the Constitution become unbounded?
The first enumerated power that the Constitution grants to Congress is 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.” The text indicates that the taxing power is not plenary, but can be used only for defined ends and objects—since a comma, not a semicolon, separated the clauses on means (taxes) and ends (debts, defense, welfare).
This punctuation was no small matter. In 1798, Pennsylvania Rep. Albert Gallatin said that fellow Pennsylvania Rep. Gouverneur Morris, chairman of the Committee on Style at the Constitutional Convention, had smuggled in the semicolon in order to make Congress’s taxing power limitless, but that the alert Roger Sherman had the comma restored. The altered punctuation, Gallatin said, would have turned “words [that] had originally been inserted in the Constitution as a limitation to the power of levying taxes” into “a distinct power.” Thirty years later, Virginia Rep. Mark Alexander accused Secretary of State John Quincy Adams of doing the same thing after Congress instructed the administration to print copies of the Constitution.
The punctuation debate simply reinforced James Madison’s point in Federalist No. 41 that Congress could tax and spend only for those objects enumerated, primarily in Article I, Section 8.
Congress enacted very few taxes up to the end of the Civil War, and none that was a pretext for regulating things that the Constitution gave it no power to regulate. True, the purpose of tariffs was to protect domestic industry from foreign competition, not raise revenue. But the Constitution grants Congress a plenary power to regulate commerce with other nations.
Congress also enacted a tax to destroy state bank notes in 1866, but this could be seen as a “necessary and proper” means to stop the states from usurping Congress’s monetary or currency power. It was upheld in Veazie Bank v. Fenno (1869).
The first unabashed use of the taxing power for regulatory purposes came when Congress enacted a tax on “oleomargarine” in 1886. Dairy farmers tried to drive this cheaper butter substitute from the market but could only get Congress to adopt a mild tax, based on the claim that margarine was often artificially colored and fraudulently sold as butter. President Grover Cleveland reluctantly signed the bill, saying that if he were convinced the revenue aspect was simply a pretext “to destroy . . . one industry of our people for the protection and benefit of another,” he would have vetoed it.
If you’re still intrigued, read the rest of Moreno’s piece here.
CJ, I have discussed this particular argument in the Federalist Papers by Madison before, in response to arguments by liberal/progressives using the “general welfare” phrase as a clause that allows Congress to enact taxation under it.
Madison’s argument is basically that much like a paragraph in a piece of writing, that the initial statement is a general idea of the specifics that would follow. In arguing this, Madison writes that the first line in Article I, Section 8 does not enumerate any power to Congress under which it can tax, but simply states that it can levy taxes in order to pay for those enumerated reasons that follow.
This is probably the most misunderstood portion of the Constitution, even more so that the 2nd Amendment’s wording, and has probably done the most damage, via Congress’ desire to garner more power and money from the citizenry, than any other contained within the Constitution.
Madison essentially argues that Congress, and therefore government, does NOT have unlimited power of taxation. Liberals who believe in the validity of the general welfare “clause” and Congress’ power to tax under it are basically arguing for the unlimited power of taxation by Congress and the government.
We get statements here at FA by liberals saying that the Constitution isn’t clear in areas, but the writings of Madison, Alexander, and Jay in the Federalist Papers were meant, when written, to explain what the Constitution says. Someone who wishes to understand the Constitution should take it upon themselves to read these writings in order to do so.
Excellent writeup CJ.
What I find really startling is that Hillsdale’s Mr. Moreno (author of CJ’s linked post), gives the history of the tax battles with cited cases, but fails to mention the damage piled on by the passage of the 16th Amendment in 1913. That truly screwed the nation, granting far more taxation powers to the Congress that didn’t meet the States’ apportionment standards.
Because of that passage, the SCOTUS upheld U.S. v. Doremus in 1919 – a ruling for a lawsuit filed in the immediate wake of the Amendment’s ratification that imposed taxes on druggists’ sales of opiates, and forever altered the taxation powers – to the detriment of the nation’s taxpayers. Would love to see it repealed, but good luck with that.
@MataHarley:
Anything that would reduce government’s power over the people is very unlikely to be repealed, unless we somehow get a large majority of politicians in Congress who are conservative.
I am absolutely blown away at the FACT that we all [now] work 7 months out of the year JUST for the GOVERNMENT….!!!!
This is just not right!
@FAITH7: so 7 months working for the Govt…we are now on a very slippery slope to slide down to all of our labor goes to the Govt. and the Govt. provides all provisions, healthcare,etc….so if you need anything at all you will have to apply to your local govt. person for permission to get what you need….folks this sure sounds like communism to me….but we have so allowed our children not to be educated they cannot even see it coming at them. I was truely amazed by the latest Jesse Watters video on the Factor…asking questions from 20 yr olds…getting answers such as “what’s a founding father?”…these were mid 20 yr olds folks….one more thing…if Barry gets re-elected watch for the push for an amendment so he can continue to be president….after all he is already acting as a dictator…..
@FAITH7:
A little correction, Faith. It’s not ‘we all’, but rather, half of us. Remember, the other half doesn’t pay any income taxes, either because of the current tax rate schedules, or because they don’t work.
Half of all Americans are paying for the other half to receive the bennies and perks given by our benevolent government. And liberal/progressives want to take a small percentage of those people and force them to pay for even more services, bennies and perks that the non-working and lower income citizens receive.
When will the idiots realize that once the “1%ers” have been beaten down far enough, that a new 1% group will be acknowledged, made up of a lower income threshold, and that the liberal/progressives in government will be sharpening the pitchforks and lighting the torches to go after them next. And after that, the next recognized “1%er” group. And then the next. And the next. And the next. And on and on until eventually there won’t be anyone able to make it on their own, but everyone will rely on the federal government’s benevolence in order to live.