ArtI.S8.C1.2.2 Historical Background on Spending Clause

Article I, Section 8, Clause 1:

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; . . .

Under the Articles of Confederation, the Confederation Congress had authority to “ascertain the necessary sums of money to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses.” 1 “All charges of war, and all other expenses” that were “incurred for the common defense or general welfare” were paid “out of a common treasury.” 2

For many of the Founding generation, though, this power to determine necessary expenses had limited utility.3 The common treasury depended entirely on taxes levied by states under state law.4 If a state failed to supply its quota for national expenses, the Confederation Congress had few effective alternatives. For example, in 1782 New Jersey urged the Confederation Congress to put a stop to the practice of other states paying the wages of troops of their own line rather than contributing those sums to the common treasury to support the Continental Army as a whole.5 The Confederation Congress’s response was that it had already done all it could to ensure that the “whole army” would be “regularly and duly paid” by setting revenue quotas for states, but given the lack of a national taxing power only states could take the actions necessary to meet those quotas.6

The Constitution ratified by the states plainly addressed the prior lack of a national taxing power. Congress had the “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.” 7 What was far from plain, both before and after ratification, was the authority that the Spending Clause conferred on Congress to authorize expenditures.8

One collection of views, commonly associated with James Madison, argued that the Constitution was structured so that the general language of the Spending Clause was followed by a “specification of the objects alluded to by these general terms.” 9 The Madisonian view judged the validity of a particular spending measure by asking whether the spending addressed a subject within one of Congress’s other enumerated powers.10 Another set of viewpoints, commonly associated with Alexander Hamilton, took a broader view.11 Hamilton argued that the phrase “the general welfare” was as “comprehensive as any that could have been used.” 12 The phrase embraced subject matter of such wide variety that it defied further specification or definition.13

Articles of Confederation of 1781, art. IX, para. 5. back
Id., art. VIII, para. 1. back
See, e.g., The Federalist No. 21 (Alexander Hamilton) ( “The principle of regulating the contributions of the States to the common treasury by QUOTAS is another fundamental error in the Confederation.” ). back
Articles of Confederation of 1781, art. VIII, paras. 1–2 (specifying that the common treasury would be “supplied by the several States” according to land values and that “taxes for paying” each state’s share of necessary sums “shall be laid and leveied by the authority and direction of the legislatures of the several States” ). back
23 J. of the Cont’l Cong. 629 (Oct. 1, 1782). The Continental Congress provided for the raising of the Continental Army by establishing regimental quotas for each state to furnish. See, e.g., 18 J. of the Cont’l Cong. 894 (Oct. 3, 1780). Troops furnished by a state were considered part of the state’s “line.” See Robert K. Wright, Jr., The Continental Army 438 (1983) (explaining that a “line” was that “portion of the Continental Army under the auspices of a specific state” ). back
See 23 J. of the Cont’l Cong. 629–31 (Oct. 1, 1782) (asserting that if “individual states undertake, without the previous warrant of Congress, to disperse any part of moneys required for and appropriated to the payment of the army, . . . the federal constitution must be so far infringed” ). back
U.S. Const. art. I, § 8, cl. 1. back
These disputes persisted long after the Founding generation. See, e.g., Theodore Sky, To Provide for the General Welfare 245–46 (2003) (discussing then-Rep. Abraham Lincoln’s Hamiltonian rejoinder to President James K. Polk’s 1848 veto of a river-and-harbors bill). back
See The Federalist No. 41 (James Madison). back
The Virginia Report of 1799–1800, at 201 (J.W. Randolph ed., 1850) ( “Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress.” ). back
Having endorsed the Hamiltonian view in his influential treatise on the Constitution, Justice Joseph Story is often listed alongside Hamilton as one of its chief proponents. See, e.g., United States v. Butler, 297 U.S. 1, 66 (1936); see also 2 Joseph Story, Commentaries on the Constitution of the United States § 922 (1833). back
Alexander Hamilton, Report on the Subject of Manufactures 54 (1791). back
Id. back