Happy (Belated) Constitution Day

I don't want to step on our resident historian's toes but I'd like to make a brief(-ish) historical note in honor of Constitution Day. And since I missed the actual Constitution Day due to a logic board failure, this note is a bit late.

Sometimes people seem to get in their heads the idea that politics and opportunism developed sometime after the Founders were all dead or that the basic philosophical questions that divide us today--the proper role of government and best interpretation of the Constitution--weren't key points of controversy for the founding generation. But of course it didn't and indeed they were.

Five years or so after the Federalist No. 9 and the Federalist No. 10 warned of the dangers of domestic faction, the First Party System in American history arose. The nascent political parties comprising it were led by, ironically, the authors of those two documents. The Federalists embraced a strong federal government and a fairly broad interpretation of the Constitution's general welfare clause. They followed the lead of their founder, Alexander Hamilton, who wrote in his famous Report on Manufactures:

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" [...] 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.

This is one of the authors of the Federalist papers (and a signer of the Constitution) writing here. One would think if opinions of long-dead men are key here, Hamilton's would carry at least as much weight as Thomas Jefferson's (Jefferson, of course, was not a signer of the Constitution and wasn't present in Independence Hall during that momentous summer of 1787). Nevertheless, modern-day proponents of a strict construction of the Constitution often quote Jefferson to make their point.

Jefferson, along with "Father of the Constitution" and co-Publius James Madison, led the other major political party, the Democratic-Republicans, who took a much more restrictive view of the general welfare clause. Today, strict construction-types sometimes seize on his writings--like his description, in a letter to Albert Gallatin, of the central philosophical differences on Constitutional interpretation--to bolster their position:

Whereas, our tenet ever was, and, indeed, it is almost the only land-mark 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;

But did Jefferson really believe that funds raised through taxation could only be spent on items specifically enumerated in the Constitution? Students of history will remember that, in 1803, Jefferson was famously put in the odd position of committing a large amount of money in pursuit of an action not explicitly authorized by the Constitution. Napoleon, looking to unload some real estate, made one of Jefferson's consiglieres an offer he couldn't refuse: $15 million for the vast tract of land that would become known as the Louisiana Purchase. And while Jefferson himself was reportedly deeply troubled by the Constitutionality of this decision, the purchase certainly triggered a lively debate in Congress. Did Jefferson find unlikely allies in the loose constructionist Federalist Party and uncomfortable foes among the ranks of his own strict constructionist Democratic-Republicans? Not quite. A variation of the public administration maxim known as Miles's law--"where you stand depends on where you sit"--came into play, as it often does in politics.

The Federalists, their power dwindling at this point and eager to throw roadblocks in front of the Democratic-Republicans, argued against the Louisiana Purchase on constitutional grounds (such naked opportunism!). What did Jefferson's Democratic-Republicans present as a counterargument to justify their purchase? Amazingly, the general welfare clause! Here's a leading Democratic-Republican in the House of Representatives, Caesar Rodney, making the case:

A recurrence to the Constitution will show that it is predicated on the principle of the United States acquiring territory, either by war, treaty, or purchase. There was one part of that instrument within whose capricious grasp all these modes of acquisition were embraced. By the Constitution Congress 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." To provide for the general welfare! The import of these terms is very comprehensive indeed. If this general delegation of authority be not at variance with other particular powers specially granted, nor restricted by them; if it be not in any degree comprehended in those subsequently delegated, I cannot perceive why, within the fair meaning of this general provision is not include the power of increasing our territory, if necessary for the general welfare or common defence.

Four years later that devoted soldier for the party became Jefferson's attorney general. He retained the post for most of Madison's first term. The point here is that even among the founding generation--even within the party of the patron saints of strict construction--a decidedly loose interpretation of the general welfare clause was employed when it was politically expedient to do so.

Today, 223 years after the Constitution was signed, we face the same questions and the same naked political maneuvering. Is the Constitution "alive" in some sense and thus adaptable to changing circumstances? Or is it, for lack of a better antipodal adjective, a dead document, equipped only to govern a late 18th century agrarian society and allowing no interpretation that would enable application of its basic structure to a post-industrial society? And should it concern us that so many people who seem to hold the latter view may well be strolling through the halls of Congress in a four months?