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Fake James Madison

Fake James Madison

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Ian Millhiser explains how conservatives' calls to end programs such as Social Security and Medicare stem from misinterpretation of the Constitution.
Ian Millhiser explains how conservatives' calls to end programs such as Social Security and Medicare stem from misinterpretation of the Constitution.

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Published by: Center for American Progress on May 27, 2011
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1Center or American Progress |  The Fake James Madison
 The Fake James Madison
Conservatives’ Selective Reading of the FoundingFathers Threatens Social Security and Medicare
Ian Millhiser May 2011
Introduction
Te House Republican plan o phase ou Medicare is crashing and burning. Rep.-elecKahy Hochul (D-NY) jus won an impossible elecion vicory by campaigning o keepMedicare alive. Te Senae jus soundly rejeced he House GOP’s plan. Even ormerSpeaker o he House New Gingrich, who once shu down he governmen in a ailedatemp o orce Presiden Bill Clinon o suppor draconian Medicare cus, blased hisMedicare-killing plan as “radical righ-wing social engineering. Ye even as his concered assaul on Medicare hemorrhages suppor rom elecedocials, conservaives have a backdoor plan o ge he cours o kill Medicare or hem.Numerous lawmakers embrace a discredied heory o he Consiuion ha would noonly end Medicare ourigh bu also cause counless oher cherished programs o bedeclared unconsiuional. Under his heory, Pell Grans, ederal suden loans, oodsamps, ederal disaser relie, Medicaid, income assisance or he poor, and even SocialSecuriy mus all be eliminaed as oensive o he Consiuion.
1
 In essence, supporers o his consiuional heory would so compleely rewrie America’s social conrac ha hey make Rep. Paul Ryan (R-WI), he auhor o heHouse GOP plan, look like Marin Luher King Jr. Tis issue brie explores he legal andhisorical gymnasics required o accep he conservaive posiion ha programs likeMedicare and Social Securiy violae he Consiuion.
 The general welfare
 Alhough Congress’s auhoriy is limied o an iemized lis o powers conained inhe ex o he Consiuion isel, hese powers are quie sweeping. Tey include heauhoriy o regulae he naional economy, build a naional posal sysem, creae com-prehensive immigraion and inellecual propery regulaion, mainain a miliary, andraise and spend money.
 
2Center or American Progress |  The Fake James Madison
Tis las power, he auhoriy o raise and spend money, is among Congress’s broadespowers. Under he Consiuion, naional leaders are ree o spend money in any way hey choose so long as hey do so o “provide or he common deense and general welare o he Unied Saes.”
2
For his reason, laws such as Medicare and Social Securiy are obviously consiuional because hey boh raise and spend money o he bene o all Americans upon heir reiremen.Many members o Congress, however, do no believe he Consiuion’s words mean wha hey say hey mean. Consider he words o Sen. Rand Paul (R-KY), who recenly explained he origin o he increasingly common belie ha Congress’s consiuionalspending power is so small ha i can be drowned in a bahub:
 I you read [James] Madison, Madison will tell you what he thought o the WelareClause. He said, “Yeah, there is a General Welare Clause, but i we meant that you cando anything, why would we have listed the enumerated powers?” Really, the WelareClause is bound by the enumerated powers that we gave the ederal government.
3
In essence, Paul and many o his ellow conservaives believe Congress’s power o collecaxes and “provide or he common deense and general welare o he Unied Saes”really only enables Congress o build pos oces or und wars or ake oher acionsexpressly auhorized by some oher par o he Consiuion. According o his view, hespending power is no—as i is almos universally undersood
4
—isel an independenenumeraed power auhorizing Congress o spend money.Paul’s undersanding o he Spending Clause is no simply he idiosyncraic view o an oulier senaor. Indeed, here is srong reason o believe his view is shared by hemajoriy o his caucus. In he lead-up o he 2010 miderm elecions, congressionalRepublicans released a “Pledge o America,” which broadly oulined heir plans or gov-erning i hey were o prevail ha November.
5
In i, he lawmakers claimed ha “lack o respec or he clear consiuional limis and auhoriies has allowed Congress o creaeineecive and cosly programs ha add o he massive deci year aer year.”
6
Tis language suggess ha many conservaives agree wih Sen. Paul ha Congress issomehow exceeding is consiuional auhoriy o spend money. Bu here is no sup-por or his view in consiuional ex or in Supreme Cour preceden.In is very rs decision o consider he issue—is 1936 decision in
United Statesv. Butler 
—he Supreme Cour unanimously armed ha “he power o Congresso auhorize expendiure o public moneys or public purposes is no limied by hedirec grans o legislaive power ound in he Consiuion,” as Sen. Paul would claim.
7
 Similarly, while he ex o he Consiuion esablishes ha “he exercise o he spend-ing power mus be in pursui o ‘he general welare,’” neiher Sen. Paul nor he Pledgecies examples o laws ha ail o mee his crierion.
8
 
3Center or American Progress |  The Fake James Madison
Selectively reading Madison
 While conservaives’ narrow undersanding o he spending power nds no suppor inhe ex o he Consiuion or in he Supreme Cour’s decisions, Sen. Paul is correcha i does have one very amous supporer. In an 1831 missive, ormer Presiden JamesMadison claimed ha he bes way o read he Spending Clause is o ignore is lieralmeaning and impose an exra-exual limi on Congressional power:
With respect to the words “general welare,” I have always regarded them as qualiedby the detail o powers connected with them. o take them in a literal and unlimitedsense would be a metamorphosis o the Constitution into a character which there is ahost o proos was not contemplated by its creators.
9
 
Sen. Paul suggess ha Madisons exra-exual limi is boh auhoriaive and binding—even i i means ha programs ranging rom Social Securiy o Medicare o Pell Gransmus all cease o exis. Bu i is a misake o assume ha Madisons preerred consruc-ion o he Spending Clause mus resric modern-day congressional acion.Firs o all, even he mos prominen supporers o originalism”—he belie ha heConsiuion mus be read exacly as i was undersood a he ime i was writen—rejeche view ha an individual ramer’s inenions can change consiuional meaning. Ashe naion’s leading originalis, Supreme Cour Jusice Anonin Scalia, explains, “Idon’ care i he ramers o he Consiuion had some secre meaning in mind whenhey adoped is words. I ake he words as hey were promulgaed o he people o heUnied Saes, and wha is he airly undersood meaning o hose words.
10
Indeed, Madison himsel would have been dismayed by he claim ha an esablishedundersanding o he Consiuion mus bend o his own singular views. Like Scalia,Madison rejeced he noion ha he ramers’ personal desires can deea he words hey acually commited o ex. As he explained o uure Presiden Marin Van Buren, “I amaware ha he documen mus speak or isel, and ha ha inenion canno be subsi-ued or [he inenion derived hrough] he esablished rules o inerpreaion.
11
Secondly, Madison embraced a way o inerpreing he Consiuion reminiscen o heevolving heories o consiuional inerpreaion ha are so widely decried by modernconservaives. Alhough Rep. Madison opposed on consiuional grounds he creaiono he Firs Bank o he Unied Saes in 1791, Presiden Madison signed ino law anac creaing he Second Bank in 1816. He “recognized ha Congress, he Presiden,he Supreme Cour, and (mos imporan, by ailing o use heir amending power) he American people had or wo decades acceped” he Firs Bank, and he viewed hisaccepance as “a consrucion pu on he Consiuion by he naion, which, havingmade i, had he supreme righ o declare is meaning.”
12

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