Report on Manufactures

5 Dec. 1791Papers 10:302–4

A Question has been made concerning the Constitutional right of the Government of the United States to apply this species of encouragement, but there is certainly no good foundation for such a question. The National Legislature has express authority “To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare” with no other qualifications than that “all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that “no tax or duty shall be laid on articles exported from any state.” These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” 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.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this–That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.
ALEXANDER HAMILTON

The Founders’ Constitution
Volume 2, Article 1, Section 8, Clause 1, Document 21
http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html
The University of Chicago Press

The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961–79.

25 Responses

  1. I predicted Roberts’ ruling for three reasons:

    1] Like QB, I think he is deferential to Congress.
    2] I listened carefully to his questioning of the advocates.
    3] I also believe him to be a Hamiltonian [like me].

    I think that is a perfectly fine originalist reading of the powers of Congress and that it is often overlooked that my favorite guy, Hamilton, had more sway early then the later darling, Jefferson.

    Because of the Holiday, and having left family at the parade, I had time for this. Scott, my views on states’ rights/sovereignty/secession are known to you, but next week I will flesh them out with citations and history. At least I hope it will be next week. Now, back to file stripping.

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    • MarK

      I think that is a perfectly fine originalist reading of the powers of Congress and that it is often overlooked that my favorite guy, Hamilton, had more sway early then the later darling, Jefferson.

      If you want to recruit Hamilton as a supporter of Roberts’ opinion, I think you will first have to demonstrate that Hamilton would have been happy to misconstrue something that not only has the nature of, but was specifically called, a penalty as a tax. I’m not aware of anything in Hamilton’s writings that suggest he would.

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      • something that not only has the nature of, but was specifically called, a penalty

        1 for 2. Better than Ted Williams in 1941! It is called a penalty but I defy you to find another penalty like it, in state or federal law, except the penalty for failure to pay a tax! OTOH, it is a bit like a tax. Is it more like a tax than like a penalty? Or, if it is treated, specifically, like a tax penalty, is it more like a penalty?

        I actually do not know. I do not know if Hamilton would have decided it was more like a tax, or if he would have let the Congress be hoist upon its own petard of obfuscation. I cited him because that tradition of broad Congressional power to tax and spend was lost in the prior discussion.

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  2. Thank you, thank you, thank you, to both Scott and Mark. I’m thoroughly enjoying these posts.

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  3. It’s not like there weren’t doctors and medicine when the Constitution was drafted, so why do you think they excluded healthcare as a right? I’m not being snarky, I’m just flabbergasted that many of my fellow citizens consider it a right and I was curious if there was ever a belief, at the time of the framing of the Constitution, that healthcare was a right and should be included.

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  4. Are you sure they excluded it, or just didn’t include it. They couldn’t have been expected to think of everything, could they?

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  5. Well, one would think that healthcare, which was as important then as it is now, would have been included I’m curious to know if it was, at the time, considered by the Framer’s for inclusion and was left out for whatever reason.

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    • George, like you I do not think of health care as a “right”. So my first take on your question is “huh?”

      At a mundane level, health care was not terribly well understood, of course – a “right” to leeches?

      Insofar as modern understanding was beginning, we did create the antecedent to the USPHS in the 1790s to deal with contagion brought by merchant mariners and sailors. And localities were beginning to understand clean water as a municipal [public] service.

      That’s all I’ve got.

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  6. I’ve never found the so-called Hamiltonian interpretation of the taxing clause persuasive. It renders the enumerated and limited powers the drafters clearly intended so near a vain gesture to be a reading that gives the most plausible reading of the document. If they intended Congress to have a broad power to “provide for the General Welfare,” why would they not have separately listed that all-encompassing power separately in Section 8, rather than saying only that Congress has the power to lay taxes for that purpose?

    And I agree with Scott that, even if you accept that view, it in now way justifies the ACA decision and its willful mischaracterization of the mandate. Where Mark defies anyone to find another penalty like it, I would defy anyone to find another tax like it. Moreover, Roberts’s reasoning is less that the mandate can even be interpreted as a tax than that Congress could have done something to equivalent effect with a tax. That is a vast leap and in my view a complete abdication of the Court’s duty.

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  7. Mark, over on some lefty blogs (Kos and FDL) many if not most consider it a right, and I suspect there are some here that do as well.

    “At a mundane level, health care was not terribly well understood, of course – a “right” to leeches?”

    Well, when we look back, yeah, it seems pretty primitive, but people went to doctors then, there were medical schools of a sort and apprenticeships and, I’m sure, that it was thought to be about as well understood as we do today about medicine. That’s why I wonder about those that believe it’s a right, why didn’t the framers include it, or perhaps discuss it at the various debates when the Constitution was being written? Or did they?

    As far as the SCOTUS decision goes, do you think the CJ Roberts actually believes that the mandate penalty is a constitutional tax and therefore the whole law is constitutional? If he wasn’t CJ, do you still think he would have voted the way he did? Finally, how comfortabel are you with Congress’s power to tax inactivity as well as the ability to call it whatever it wants and the Court will still consider it a tax?

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    • Finally, how comfortabel are you with Congress’s power to tax inactivity as well as the ability to call it whatever it wants and the Court will still consider it a tax?

      I am comfortable with it, so long as the Court keeps in mind that the power to tax is, at the margins, the power to destroy, and the tax cannot be imposed in violation of the restrictions in the Constitution. It is my fervent hope that a tax designed to discourage people from eating liver would cause no concern but one that mandated eating liver would lead to wholesale removal at the next election of all congresspersons who voted for it. Serious point being that we have a remedy for taxes we don’t like and there are infinitely more bad taxes imaginable than there are unconstitutional ones.

      I give Roberts the benefit of the doubt, simply because he was headed in this direction at oral argument and really gave Clement the only hard time Paul got, from anyone, over this.

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      • Serious point being that we have a remedy for taxes we don’t like

        We have the same remedy for any mandates or laws we don’t like, don’t we?

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        • We have the same remedy for any mandates or laws we don’t like, don’t we?

          Sure.

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      • mark:

        I give Roberts the benefit of the doubt, simply because he was headed in this direction at oral argument and really gave Clement the only hard time Paul got, from anyone, over this.

        It doesn’t matter much to me whether Roberts actually believes he made a principled decision or not. It was obviously the wrong one. In fact I think the most charitable spin one can put on Roberts’ opinion is that it was a political one. If he thinks he was delivering a principled conservative judicial opinion, he’s too dumb to have been put on the court.

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        • If he thinks he was delivering a principled conservative judicial opinion,

          Why wouldn’t he think he was delivering a principled non-partisan decision, based on deference to Congress, when a Court can find a way to defer? That is a principle in law, not politics.

          I think the decision is weak. I made that clear when I mused about “tax” and “penalty”. I won’t go to unprincipled.

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        • Mark:

          Why wouldn’t he think he was delivering a principled non-partisan decision, based on deference to Congress, when a Court can find a way to defer?

          Because he was obviously ignoring, not deferring to, Congress.

          Congress structured the law as a penalty, not a tax, for a reason. It wasn’t a mistake. It wasn’t an oversight. It was done deliberately, and was what Congress wanted. But Roberts has ruled that no, they didn’t want to impose a penalty, what they really wanted to do was impose a tax, so he pretends that they did what they plainly didn’t do in order to make his ruling. That’s not deferring to Congress.

          BTW, when I referred to a “conservative” opinion I did not mean a result favorable to political conservatives. I meant a judicially conservative opinion, ie one that interprets the law as a judicial conservative would, which is in contrast to how a judicial liberal construes the law. In this context, I’m not sure what it means to speak of a “non-partisan” decision.

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        • There really is no constitutional basis (i.e., a basis you can find in the document) for a rule of law that the Court is to defer to Congress. I have never accepted the idea as sound. I don’t see anything in the text or structure of the Constitution that says the Court should do anything other than apply the terms and “call ’em as they see ’em.”

          In this case, though, Roberts and the liberals took the concept so far as to say, in essence, that it will uphold anything Congress does based not on what it actually did but so long as it could have accomplished the same thing by doing something different than it did.

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        • QB, first, there are taxes imposed under ACA.

          IRC Sec. 5000. Certain group health plans

          (a) Imposition of tax
          There is hereby imposed on any employer (including a
          self-employed person) or employee organization that contributes to
          a nonconforming group health plan a tax equal to 25 percent of the
          employer’s or employee organization’s expenses incurred during the
          calendar year for each group health plan to which the employer or
          employee organization contributes.
          (b) Group health plan and large group health plan
          For purposes of this section –
          (1) Group health plan
          The term ”group health plan” means a plan (including a
          self-insured plan) of, or contributed to by, an employer
          (including a self-employed person) or employee organization to
          provide health care (directly or otherwise) to the employees,
          former employees, the employer, others associated or formerly
          associated with the employer in a business relationship, or their
          families.
          (2) Large group health plan
          The term ”large group health plan” means a plan of, or
          contributed to by, an employer or employee organization
          (including a self-insured plan) to provide health care (directly
          or otherwise) to the employees, former employees, the employer,
          others associated or formerly associated with the employer in a
          business relationship, or their families, that covers employees
          of at least one employer that normally employed at least 100
          employees on a typical business day during the previous calendar
          year. For purposes of the preceding sentence –
          (A) all employers treated as a single employer under
          subsection (a) or (b) of section 52 shall be treated as a
          single employer,
          (B) all employees of the members of an affiliated service
          group (as defined in section 414(m)) shall be treated as
          employed by a single employer, and
          (C) leased employees (as defined in section 414(n)(2)) shall
          be treated as employees of the person for whom they perform
          services to the extent they are so treated under section
          414(n).
          (c) Nonconforming group health plan
          For purposes of this section, the term ”nonconforming group
          health plan” means a group health plan or large group health plan
          that at any time during a calendar year does not comply with the
          requirements of subparagraphs (A) and (C) or subparagraph (B),
          respectively, of paragraph (1), or with the requirements of
          paragraph (2), of section 1862(b) of the Social Security Act.
          (d) Government entities
          For purposes of this section, the term ”employer” does not
          include a Federal or other governmental entity.

          Then, there is a “mandate” for individuals. If individuals violate the mandate, they pay a “penalty” to be collected as a penalty for failure to pay tax under IRC 5000.

          I think it’s weak, and a slight stretch, but not an invention, to treat the IM tax penalty as a tax.
          ************
          And you know that interpretation that saves a statute is a rule of construction that is based on the notion that courts should not make law, where a statute already exists, unless the statute is clearly outside the power of the legislature. I say “clearly”, because any lower standard invites judicial meddling. The discussion in the AZ case of the stop-and-identify portion of the statute was based on the same rule of construction.

          And a little judicial modesty would have had the dissent severing the portions they thought were unconstitutional, rather than striking the statute based on the failure of Congress to include a severance clause. If I were wildly speculating about the “movement” among the justices, I would think that either the refusal to sever drove Roberts to save the statute, or Roberts’ stretch drove the dissent to an extreme position. Further, at orals, the liberals were skeptical of the “tax” argument, but when left without a majority on commerce, they all joined the CJ. I thought that was a bit convenient.

          I will be interested to watch for Roberts’ consistency on this aspect of statutory interpretation, over time.

          This is the end of my fun time here for awhile. Enjoy!

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  8. I meant a judicially conservative opinion, ie one that interprets the law as a judicial conservative would, which is in contrast to how a judicial liberal construes the law.

    Talk about tautologies. Of course judicial conservatives make judicially conservative opinions. We are entering deep into No True Scotsman territory when you insist that Roberts did not make a conservative decision just because you disagree with it. Not overturning laws willy-nilly is a pretty conservative position. They should only be overturned when they are clearly unconstitutional and in Roberts’s considered opinion, ACA did not.

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    • yello:

      Of course judicial conservatives make judicially conservative opinions.

      If this were a tautology, we would never see accusations of hypocrisy, as we have in, say, Bush v Gore. Clearly it is possible for an erstwhile conservative Justice to be judged to have violated a previously proclaimed conservative approach to the constitution.

      …when you insist that Roberts did not make a conservative decision just because you disagree with it.

      Strawman. I have insisted no such thing.

      Not overturning laws willy-nilly is a pretty conservative position.

      But not overturning laws that rely on powers which do not exist in the Constitution is not a conservative position.

      …and in Roberts’s considered opinion, ACA did not.

      An excellent example of petitio principii.

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  9. I guess I don’t understand the certainty some people have regarding the supposed explicitness of the Constitution. I read this earlier and it struck a familiar cord with me.

    We are a more philosophical people than we give ourselves credit for. Constitutional questions enter the political conversation in the United States more than in most countries because our diverse nation is bound by our founding principles, not by blood, race or ethnicity.

    It’s not a recent habit. When Treasury Secretary Alexander Hamilton proposed that the federal government establish a Bank of the United States in 1790, his idea was strongly opposed by James Madison, his partner in writing both the Constitution and the Federalist Papers that defended it.

    Madison wasn’t just against the bank. Setting a pattern for the future, he insisted that its creation would be unconstitutional. Those who claim we can be so certain of the “original” intentions of the Founders should take note: If two of the authors of the Constitution came to such a stark point of disagreement so quickly, what exactly does “originalism” mean?

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    • I find that Dionne column, like most of his these days, infuriating in its deceptiveness and manipulation.

      I don’t believe there is any real point he is making in good faith. If there is, what is it?

      Why does he cite the Madison-Hamilton dispute, and quote Madison, only to tell us that it is being unfaithful to Madison to dispute the contitutionality of an act of Congress? Does anyone read his aimless drivel before it is published?

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  10. Mark, one question I have is doesn’t the mandate coerce me into an insurance contract? If so, how can that contract be valid?

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