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social spending
basics >
"Social Spending Basics, Constitutional History.” By James D.
Agresti. Just Facts,
February 6, 2008.
http://justfacts.com/socialspending.basics.asp
This page contains basic
facts about the Constitutional history of social spending. For further
specifics,
click here. For comprehensive and
scholarly details,
click here.
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Social Spending –
Constitutional History |
* The U.S. Constitution
is the supreme legal authority in the United States. It is the written
pact that established the U.S. government and vested it with certain
powers. All Presidents, governors, and federal/state judges and
legislators are “bound by Oath or Affirmation, to support” it.[1]
[2]
* Article I, Section 8
of the Constitution states that Congress “shall have Power” to “provide
for the common Defense and general Welfare of the United States…” In the
same sentence following these words are 27 specific powers granted to
the federal government such as coining money, enacting immigration laws,
establishing Post Offices, issuing patents, and raising armies.[3]
* James Madison was the
fourth President of the United States and is known as the ‘Father of the
Constitution’ for his central role in its formation.[4]
[5]
After the Constitution was written and before it was ratified, he wrote that the phrase “provide for the common Defense and general
Welfare” was only applicable to the specific powers that followed it
(such as coining money, raising armies, etc.). He said that to interpret
the Constitution in any other way was “an absurdity.”
[6]
* Before the
Constitution was ratified, it was protested in a New York newspaper that
the phrase “provide for the general welfare” was not clearly defined and
would give the federal government too much unrestricted power.[7]
[8]
*
In response, Alexander Hamilton, a member of the Constitutional
Convention and later the first U.S. Treasury Secretary,[9]
wrote an article asserting that this Section of the Constitution only
confers “certain specified powers.”
[10]
* After the
Constitution was ratified, Hamilton wrote a letter asserting that the
phrase “general Welfare” was “as comprehensive as any that could have
been used” and “embraces a vast variety of particulars, which are
susceptible neither of specification nor of definition.”
[11]
* This stance caused a
clash that led to the formation of the first two political parties in
the United States: one led by Alexander Hamilton and the other led by
James Madison and Thomas Jefferson (the primary author of the
Declaration of Independence and third President of the U.S.).[12]
[13]
[14]
[15]
[16]
[17]
* Conflict regarding
the interpretation of the “general Welfare” clause spilled over into the
1800’s, during which it was a recurring issue whether or not the federal
government had the authority to subsidize various projects on the
grounds they promoted the general welfare. Arguing that it did were
Presidents John Quincy Adams,[18]
[19]
Millard Fillmore and Abraham Lincoln.[20]
[21]
Arguing that it did not were Presidents James Madison,[22]
[23]
Thomas Jefferson,[24]
[25]
James Polk and Grover Cleveland.[26]
[27]
* In 1932, three years
after the start of the Great Depression,[28]
Democrat Franklin Delano Roosevelt was elected President of the United
States.[29]
He proposed and signed a variety of social spending and regulatory bills
that were collectively referred to as the ‘New Deal’. Among other items,
these laws formed 21 new federal agencies,[30]
gave money to people with financial hardships,[31]
constructed federal housing projects,[32]
and provided low interest loans to help individuals in paying their
mortgages.[33]
* Much of this
legislation was challenged in court, and between January 1935 and May
1936, the Supreme Court ruled on ten such major cases. In eight of
these, the laws were stricken down in part or entirety for overstepping
the bounds of power granted to the federal government in the
Constitution.[34]
* In 1937, Roosevelt
proposed a bill that would have allowed him to up to appoint six more
justices to Supreme Court so as to give his programs “a favorable
majority.”
[35]
[36]
[37]
[38]
When he announced this proposal, he stated that the framers of the
Constitution gave Congress “ample broad powers” to provide for the
“general welfare,” and that the Supreme Court was
|
“reading into the Constitution words and implications which are not there,
and which were never intended to be there.” |
He also stated:
|
"Our difficulty with the Court today rises not from the Court
as an institution but from the humans beings within it."
[39] |
* Seven years before
this, as the governor of New York, Roosevelt stated that
|
“almost every new or
old problem of government must be solved… by each State in its own way.
There are many glaring examples where exclusive Federal control is
manifestly against the scheme and intent of our Constitution.”
[40] |
* In one such case, the
Supreme Court upheld an act imposing new taxes that were ultimately
given to unemployed people.[49]
[50]
In this ruling, the majority wrote that given the unemployment crisis,
the federal government was justified in promoting “the general welfare.”
[51]
[52]
* Justices Owen Roberts and Charles Hughes were two of the five judges
who joined in this ruling.[53]
One year before this, Justice Roberts joined in a ruling that stated the
Constitution “made no grant of authority to Congress to legislate
substantively for the general welfare.”
[54]
A year before this, Justice Roberts and Justice Hughes joined in a
ruling that stated: “Extraordinary conditions do not create or enlarge
constitutional power.”
[55]
* One month after the
last of these decisions was issued, Roosevelt’s bill to alter the
Supreme Court was defeated in the Senate Judiciary Committee.[56]
[57]
[58]
Over the next two years, all of the justices that generally found the
New Deal programs to be unconstitutional either retired or passed on.[59]
By 1944, seven of the nine justices on the Supreme Court had been
appointed by Roosevelt,[60]
and over the next half century the Supreme Court did not rule any major
social spending program to be unconstitutional.[61]
[1]
The Constitution of the United States.
Signed September 17, 1787.
http://www.archives.gov/national-archives-experience/charters/constitution.html
Article VI, Clause 3:
The Senators and Representatives before mentioned, and the
Members of the several State
Legislatures, and all executive and
judicial Officers, both of the United
States and of the several States, shall
be bound by Oath or Affirmation, to
support this Constitution; but no
religious Test shall ever be required as
a Qualification to any Office or public
Trust under the United States.” Article
1, Section 2, Clause 8: “Before he enter
on the Execution of his Office, [the
President] shall take the following Oath
or Affirmation…:--“I do solemnly swear
(or affirm) that I will faithfully
execute the Office of President of the
United States, and will to the best of
my Ability, preserve, protect and defend
the Constitution of the United States.”
[2]
The Federalist Papers. By Alexander Hamilton, John Jay
and James Madison. October 27, 1787- May 28, 1788.
http://www.gutenberg.org/dirs/etext98/feder10a.txt
Federalist
Paper 1, By Alexander Hamilton. October 27, 1787:
“AFTER an unequivocal experience of the inefficiency of the
subsisting federal government, you are called upon to deliberate
on a new Constitution for the United States of America. The
subject speaks its own importance; comprehending in its
consequences nothing less than the existence of the UNION, the
safety and welfare of the parts of which it is composed, the
fate of an empire in many respects the most interesting in the
world. It has been frequently remarked that it seems to have
been reserved to the people of this country, by their conduct
and example, to decide the important question, whether societies
of men are really capable or not of establishing good government
from reflection and choice, or whether they are forever destined
to depend for their political constitutions on accident and
force.”
Federalist
Paper 2, By John Jay, Alexander Hamilton. October 31, 1787:
[4]
Article: “Madison, James.” Contributor: Robert J. Brugger
(Ph.D., Editor, Maryland Historical Magazine, Maryland
Historical Society). World Book Encyclopedia, 2007 Deluxe
Edition.
[5]
Book: The Bill of Rights and the States: The Colonial and
Revolutionary Origins of American Liberties. Edited by
Patrick T. Conley & John P. Kaminski. Madison House Publishers,
1992. Pages 461-514: “The Bill of Rights: A Bibliographic
Essay.” By Gaspare J. Saladino. Page 484:
“The best
historical treatments of the legislative history of the Bill of
Rights in the first federal Congress are… [six works mentioned].
All agree that James Madison, against considerable odds, took
the lead in the House of Representatives, and that without his
efforts there probably would have been no Bill of Rights.
Madison’s amendments, a distillation of those from the state
conventions (especially Virginia’s) were, for the most part,
those that the House eventually adopted.”
[6]
The Federalist Papers. By Alexander Hamilton, John Jay
and James Madison. October 27, 1787- May 28, 1788.
http://www.gutenberg.org/dirs/etext98/feder10a.txt
Federalist
Paper 41, By James Madison. January 19, 1788:
It has been urged and echoed, that 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,” amounts to an unlimited commission to exercise
every power which may be alleged to be necessary for the common
defense or general welfare. No stronger proof could be given of
the distress under which these writers labor for objections,
than their stooping to such a misconstruction.
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.”
But what color can the objection have, when a specification
of the objects alluded to by these general terms immediately
follows, and is not even separated by a longer pause than a
semicolon? If the different parts of the same instrument ought
to be so expounded, as to give meaning to every part which will
bear it, shall one part of the same sentence be excluded
altogether from a share in the meaning; and shall the more
doubtful and indefinite terms be retained in their full extent,
and the clear and precise expressions be denied any
signification whatsoever? For what purpose could the enumeration
of particular powers be inserted, if these and all others were
meant to be included in the preceding general power? Nothing is
more natural nor common than first to use a general phrase, and
then to explain and qualify it by a recital of particulars. But
the idea of an enumeration of particulars which neither explain
nor qualify the general meaning, and can have no other effect
than to confound and mislead, is an absurdity, which, as we are
reduced to the dilemma of charging either on the authors of the
objection or on the authors of the Constitution, we must take
the liberty of supposing, had not its origin with the latter.
The objection here is the more extraordinary, as it appears
that the language used by the convention is a copy from the
articles of Confederation. The objects of the Union among the
States, as described in article third, are “their common
defense, security of their liberties, and mutual and general
welfare.” The terms of article eighth are still more identical:
“All charges of war and all other expenses that shall be
incurred for the common defense or general welfare, and allowed
by the United States in Congress, shall be defrayed out of a
common treasury,” etc. A similar language again occurs in
article ninth. Construe either of these articles by the rules
which would justify the construction put on the new
Constitution, and they vest in the existing Congress a power to
legislate in all cases whatsoever. But what would have been
thought of that assembly, if, attaching themselves to these
general expressions, and disregarding the specifications which
ascertain and limit their import, they had exercised an
unlimited power of providing for the common defense and general
welfare? I appeal to the objectors themselves, whether they
would in that case have employed the same reasoning in
justification of Congress as they now make use of against the
convention. How difficult it is for error to escape its own
condemnation! PUBLIUS.
[8]
Book: The Antifederalist Papers. Edited with an
introduction by Morton Borden. Michigan State University Press,
1965. Antifederalist Paper 32, By Brutus. Published December 27,
1787 in The New-York Journal. [Regarding the proposed
constitution, Article I, Section 8, Clause 1: “common defense
and general welfare,” and Clause 18: “make all Laws which shall
be necessary and proper.”]
“It is therefore evident, that the legislature under this
constitution may pass any law which they think proper. … Not
only are these terms very comprehensive, and extend to a vast
number of objects, but the power to lay and collect has great
latitude; it will lead to the passing a vast number of laws,
which may affect the personal rights of the citizens of the
states, expose their property to fines and confiscation, and put
their lives in jeopardy. It opens the door to a swarm of revenue
and excise officers to prey upon the honest and industrious part
of the community, [and] eat up their substance…”
Antifederalist
Paper 33, By Brutus. Published December 27, 1787 in The
New-York Journal. [Regarding the proposed constitution,
Article I, Section 8, Clause 1: “Power To lay and collect Taxes”
to “provide for the common Defence and general Welfare.”]
“This power, exercised without limitation, will introduce
itself into every corner of the city, and country… To provide
for the general welfare is an abstract proposition, which
mankind differ in the explanation of, as much as they do on any
political or moral proposition that can be proposed; the most
opposite measures may be pursued by different parties, and both
may profess, that they have in view the general welfare… The
government would always say, their measures were designed and
calculated to promote the public good; and there being no judge
between them and the people, the rulers themselves must, and
would always, judge for themselves.”
[10]
The Federalist Papers. By Alexander Hamilton, John Jay
and James Madison. October 27, 1787- May 28, 1788.
http://www.gutenberg.org/dirs/etext98/feder10a.txt
Federalist
Paper 33, By Alexander Hamilton. January 3, 1788:
THE residue of the argument against the provisions of the
Constitution in respect to taxation is ingrafted upon the
following clause. The last clause of the eighth section of the
first article of the plan under consideration authorizes the
national legislature ‘to make all laws which shall be NECESSARY
and PROPER for carrying into execution THE POWERS by that
Constitution vested in the government of the United States, or
in any department or officer thereof’; and the second clause of
the sixth article declares, ‘that the Constitution and the laws
of the United States made IN PURSUANCE THEREOF, and the
treaties made by their authority shall be the SUPREME LAW of the
land, any thing in the constitution or laws of any State to the
contrary notwithstanding.’
These two clauses have been the source of much virulent
invective and petulant declamation against the proposed
Constitution. They have been held up to the people in all the
exaggerated colors of misrepresentation as the pernicious
engines by which their local governments were to be destroyed
and their liberties exterminated; as the hideous monster whose
devouring jaws would spare neither sex nor age, nor high nor
low, nor sacred nor profane; and yet, strange as it may appear,
after all this clamor, to those who may not have happened to
contemplate them in the same light, it may be affirmed with
perfect confidence that the constitutional operation of the
intended government would be precisely the same, if these
clauses were entirely obliterated, as if they were repeated in
every article. They are only declaratory of a truth which would
have resulted by necessary and unavoidable implication from the
very act of constituting a federal government, and vesting it
with certain specified powers. This is so clear a proposition,
that moderation itself can scarcely listen to the railings which
have been so copiously vented against this part of the plan,
without emotions that disturb its equanimity.
…
[11]
Letter: “Report on Manufactures.” By Alexander Hamilton.
December 5, 1791.
http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html
“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.”
[12]
Article: “Hamilton, Alexander.” Contributor: Richard Brookhiser
(Senior Editor, National Review; author of Alexander Hamilton,
American). World Book Encyclopedia, 2007 Deluxe Edition.
[13]
"Letter from Thomas Jefferson to Albert Gallatin." June 16,
1817.
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php
?title=808&chapter=88365&layout=html&Itemid=27
“You will have learned that an act for internal improvement,
after passing both Houses, was negatived by the President. The
act was founded, avowedly, on the principle that the phrase in
the constitution which authorizes Congress “to lay taxes, to pay
the debts and provide for the general welfare,” was an extension
of the powers specifically enumerated to whatever would promote
the general welfare; and this, you know, was the federal
doctrine. Whereas, our tenet ever was, and, indeed, it is almost
the only landmark 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…”
[14]
Article: “Federalist Party.” Contributor: Donald R. Hickey
(Ph.D., Professor of History, Wayne State College). World
Book Encyclopedia, 2007 Deluxe Edition.
[15]
Article: “Federalist Party.” Encyclopædia Britannica Ultimate
Reference Suite 2004.
[16]
Article: “Jefferson, Thomas.” Contributor: Noble E. Cunningham,
Jr. (Ph.D., Curators’ Professor Emeritus of History, University
of Missouri, Columbia). World Book Encyclopedia, 2007
Deluxe Edition.
[17]
Article: “Jefferson, Thomas.” Contributor: Noble E. Cunningham,
Jr. (Ph.D., Curators’ Professor Emeritus of History, University
of Missouri, Columbia). World Book Encyclopedia, 2007
Deluxe Edition.
[18]
Book: Life and Public Services of John Quincy Adams, Sixth
President of the United States. By William H. Seward. C. M.
Saxton, Barker & Co., 1860. Page 142:
While a candidate for the presidency, Mr. Adams received a
letter inquiring his views on the subject of internal
improvement. The following is an extract from his reply :—
“On the 23rd of Feb., 1807, I offered, in the
Senate of the United States, of which I was then a member, the
first resolution, as I believe, that ever was presented to
Congress, contemplating a general system of internal
improvement. I thought that Congress possessed the power of
appropriating money to such improvement, and of authorizing the
works necessary for making it—subject always to the territorial
rights of the several States in or through which the improvement
is to be made, to be secured by the consent of their
Legislatures, and to proprietary rights of individuals, to be
purchased or indemnified. I still hold the same opinions; and,
although highly respecting the purity of intention of those who
object, on constitutional grounds, to the exercise of this
power, it is with heartfelt satisfaction that I perceive those
objections gradually yielding to the paramount influence of the
general welfare. Already have appropriations of money to
great objects of internal improvement been freely made; and I
hope we shall both live to see the day, when the only question
of our statesmen and patriots, concerning the authority of
Congress to improve, by public works essentially beneficent, and
beyond the means of less than national resources, the condition
of our common country, will be how it ever could have been
doubted.”
[19]
Book: Life of James Knox Polk and a History of His
Administration. By John S. Jenkins. Burnett & Bostwick,
1854. Pages 337-355: “Special Message On Internal Improvements,
December 15th, 1847. To the House of Representatives.” Pages
347-8:
During the four succeeding years embraced by the
administration of President Adams, the power not only to
appropriate money, but to apply it, under the direction and
authority of the General Government, as well to the construction
of roads as to the improvement of harbors and rivers, was fully
asserted and exercised.
Among other acts assuming the power, was one passed on the
twentieth of May, 1826, entitled “An act for improving certain
harbors and the navigation of certain rivers and creeks, and for
authorizing surveys to be made of certain bays, sounds, and
rivers therein mentioned.” By that act large appropriations were
made, which were to be “applied under the direction of the
President of the United States” to numerous improvements in ten
of the States. This act, passed thirty-seven years after the
organization of the present Government, contained the first
appropriation ever made for the improvement of a navigable
river, unless it be small appropriations for examinations and
surveys in 1820. During the residue of that Administration many
other appropriations of a similar character were made, embracing
roads, rivers, harbors, and canals, and objects claiming the aid
of Congress multiplied without number.
[21]
Book: Life of Abraham Lincoln, Presenting His Early History,
Political Career, and Speeches in and out of Congress; Also, a
General View of His Policy as President of the United States…
Edited by Joseph H. Barrett. Moore, Wilstach & Baldwin, 1865.
Pages 90-100: [Speech delivered before the House of
Representatives by Abe Lincoln on June 20, 1848.] Page 95:
“Mr. Chairman, on the third position of the message (the
Constitutional question) I have not much to say. Being the man I
am, and speaking when I do, I feel that in any attempt at an
original, Constitutional argument, I should not be, and ought
not to be, listened to patiently. The ablest and the best of men
have gone over the whole ground long ago. I shall attempt but
little more than a brief notice of what some of them have said.”
Pages 96-97:
“This Constitutional question will probably never be better
settled than it is, until it shall pass under judicial
consideration; but I do think that no man who is clear on this
question of expediency need feel his conscience much pricked
upon this.”
Page 98:
“I have already said that no one who is satisfied of the
expediency of making improvements need be much uneasy in his
conscience about its constitutionality. I wish now to submit a
few remarks on the general proposition of amending the
Constitution. As a general rule, I think we would do much better
to let it alone. No slight occasion should tempt us to touch it.
Better not take the first step, which may lead to a habit of
altering it. Better rather habituate ourselves to think of it as
unalterable. It can scarcely be made better than it is. New
provisions would introduce new difficulties, and thus create and
increase appetite for further change. No, sir; let it stand as
it is. New hands have never touched it. The men who made it have
done their work, and have passed away. Who shall improve on what
they did?”
[22]
Book: Life of James Knox Polk and a History of His
Administration. By John S. Jenkins. Burnett & Bostwick,
1854. Pages 337-355: “Special Message On Internal Improvements,
December 15th, 1847. To the House of Representatives.” Page 351:
[24]
Book: The Life of Thomas Jefferson, Third President of the
United States. By George Tucker. Volume 2. Carey, Lea &
Blanchard, 1837. Page 403:
[25]
"Letter from Thomas Jefferson to Albert Gallatin." June 16,
1817.
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php
?title=808&chapter=88365&layout=html&Itemid=27
“You will have learned that an act for internal improvement,
after passing both Houses, was negatived by the President. The
act was founded, avowedly, on the principle that the phrase in
the constitution which authorizes Congress “to lay taxes, to pay
the debts and provide for the general welfare,” was an extension
of the powers specifically enumerated to whatever would promote
the general welfare; and this, you know, was the federal
doctrine. Whereas, our tenet ever was, and, indeed, it is almost
the only landmark 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; and that, as it was never meant they
should provide for that welfare but by the exercise of the
enumerated powers, so it could not have been meant they should
raise money for purposes which the enumeration did not place
under their action; consequently, that the specification of
powers is a limitation of the purposes for which they may raise
money. I think the passage and rejection of this bill a
fortunate incident. Every State will certainly concede the
power; and this will be a national confirmation of the grounds
of appeal to them, and will settle forever the meaning of this
phrase, which, by a mere grammatical quibble, has countenanced
the General Government in a claim of universal power. For in the
phrase, “to lay taxes, to pay the debts and provide for the
general welfare,” it is a mere question of syntax, whether the
two last infinitives are governed by the first or are distinct
and co-ordinate powers; a question unequivocally decided by the
exact definition of powers immediately following.”
[26]
Book: Life of James Knox Polk and a History of His
Administration. By John S. Jenkins. Burnett & Bostwick,
1854. Pages 337-355: “Special Message On Internal Improvements,
December 15th, 1847. To the House of Representatives.” Page 354:
“In the progress of the discussions upon this subject the
power to regulate commerce seems now to be chiefly relied upon,
especially in reference to the improvement of harbors and
rivers. In relation to the regulation of commerce, the language
of the grant in the constitution is, “Congress shall have power
to regulate commerce with foreign nations and among the several
States, and with the Indian tribes.””
[27]
Book: The Writings and Speeches of Grover Cleveland.
Edited by George F. Parker. Cassell Publishing, 1892. Pages
449-451:
February 16, 1887.
To THE HOUSE OF REPRESENTATIVES :
I return without my approval House bill number ten thousand
two hundred and three, entitled “An Act to enable the
Commissioner of Agriculture to make a special distribution of
seeds in drought-stricken counties of Texas, and making an
appropriation therefor.”
It is represented that a long-continued and extensive drought
has existed in certain portions of the State of Texas, resulting
in a failure of crops and consequent distress and destitution.
Though there has been some difference in statements
concerning the extent of the people’s needs in the localities
thus affected, there seems to be no doubt that there has existed
a condition calling for relief; and I am willing to believe
that, notwithstanding the aid already furnished, a donation of
seed-grain to the farmers located in this region, to enable them
to put in new crops, would serve to avert a continuance or
return of an unfortunate blight.
And yet I feel obliged to withhold my approval of the plan as
proposed by this bill, to indulge a benevolent and charitable
sentiment through the appropriation of public funds for that
purpose.
I can find no warrant for such an appropriation in the
Constitution, and I do not believe that the power and duty of
the general government ought to be extended to the relief of
individual suffering which is in no manner properly related to
the public service or benefit. A prevalent tendency to disregard
the limited mission of this power and duty should, I think, be
steadfastly resisted, to the end that the lesson should be
constantly enforced that, though the people support the
government, the government should not support the people.
The friendliness and charity of our countrymen can always be
relied upon to relieve their fellow-citizens in misfortune. This
has been repeatedly and quite lately demonstrated. Federal aid
in such cases encourages the expectation of paternal care on the
part of the government and weakens the sturdiness of our
national character, while it prevents the indulgence among our
people of that kindly sentiment and conduct which strengthen the
bonds of a common brotherhood.
It is within my personal knowledge that individual aid has,
to some extent, already been extended to the sufferers mentioned
in this bill. The failure of the proposed appropriation of ten
thousand dollars additional, to meet their remaining wants, will
not necessarily result in continued distress if the emergency is
fully made known to the people of the country.
It is here suggested that the Commissioner of Agriculture is
annually directed to expend a large sum of money for the
purchase, propagation, and distribution of seeds and other
things of this description, two-thirds of which are, upon the
request of senators, representatives, and delegates in Congress,
supplied to them for distribution among their constituents.
The appropriation of the current year for this purpose is one
hundred thousand dollars, and it will probably be no less in the
appropriation for the ensuing year. I understand that a large
quantity of grain is furnished for such distribution, and it is
supposed that this free apportionment among their neighbors is a
privilege which may be waived by our senators and
representatives.
If sufficient of them should request the Commissioner of
Agriculture to send their shares of the grain thus allowed them,
to the suffering farmers of Texas, they might be enabled to sow
their crops; the constituents, for whom in theory this grain is
intended, could well bear the temporary deprivation, and the
donors would experience the satisfaction attending deeds of
charity.
[28]
Article: “Great Depression.” Kris James Mitchener (Ph.D.,
Assistant Professor of Economics, Santa Clara University).
World Book Encyclopedia, 2007 Deluxe Edition.
[29]
Article: “Roosevelt, Franklin Delano.” Contributor: James T.
Patterson (Ph.D., Professor of History, Brown University).
World Book Encyclopedia, 2007 Deluxe Edition.
[31]
Article: “New Deal.” Contributor: David A. Shannon (Ph.D.,
Former Professor of History, University of Virginia). “The
Federal Emergency Relief Administration provided the states with
money for the needy.”
[35]
Book: The Supreme Court Reborn: The Constitutional Revolution
in the Age of Roosevelt. By William E. Leuchtenberg. Oxford
University Press, 1995. Page 86:
“At a Cabinet
meeting on July 11, 1935… Secretary of the Interior Harold L.
Ickes noted in his diary:
[37]
Book: Documents of American History. Volume 2 (since
1898). Edited by Henry Steele Commager. Prentice-Hall, 1973.
Page 382:
PROPOSED BILL.
Be it enacted,
That—
(a) When any judge of a court of the United States, appointed
to hold his office during good behavior, has heretofore or
hereafter attained the age of seventy years and has held a
commission or commissions as judge of any such court or courts
at least ten years, continuously or otherwise, and within six
months thereafter has neither resigned nor retired, the
President, for each so judge who has not so resigned or retired,
shall nominate, and by and with the advice and consent of the
Senate, shall appoint one additional judge to the court to which
the former is commissioned…
(b) … No more than fifty judges shall be appointed [under
subsection (a)], nor shall any judge be so appointed if such
appointed would result in (1) more than fifteen members of the
Supreme Court of the United States…
[39]
Book: Documents of American History. Volume 2 (since
1898). Edited by Henry Steele Commager. Prentice-Hall, 1973.
Pages 383-7:
ADDRESS BY THE PRESIDENT OF THE UNITED STATES, MARCH 9, 1937
…
But the framers went further. Having in mind that in
succeeding generations other problems then undreamed of would
become national problems, they gave the Congress the ample broad
powers to “levy taxes *** and provide for the common defense and
general welfare of the United States.”
…
The Court… has improperly set itself up as a third House of
Congress—a superlegislature, as one of the Justices has called
it—reading into the Constitution words and implications which
are not there, and which were never intended to be there. We
have, therefore, reached the point as a Nation where we must
take action to save the Constitution from the Court and the
Court from itself.
…
Our difficulty with the Court today rises not from the Court
as an institution but from the humans beings within it.
[43]
Ruling: “West Coast Hotel v. Parrish.” U.S. Supreme Court,
March 29, 1937. Case 300 U.S. 379. Decided 5-4. Majority:
Hughes, Brandeis, Benjamin N. Cardozo, Roberts, Stone.
Dissenting: Sutherland, Butler, McReynolds, Van Devanter.
[44]
Ruling: “National Labor Relations Board v. Jones and Laughlin
Steel.” U.S. Supreme Court, April 12, 1937. Case 301 U.S.
1. Decided 5-4. Majority: Hughes, Brandeis, Cardozo, Roberts,
Stone. Dissenting: McReynolds, Butler, Sutherland, Van Devanter.
[45]
Ruling: “National Labor Relations Board v. Friedman-Harry Marks
Clothing Company.” U.S. Supreme Court, April 12, 1937.
Case 301 U.S. 58. Decided 5-4. Majority: Hughes, Cardozo,
Roberts, Stone, Brandeis. Dissenting: McReynolds, Van Devanter,
Sutherland, Butler.
[47]
Ruling: “Stewart Machine Company v. Davis.” U.S. Supreme
Court. May 24, 1937. Case 301 U.S. 548. Decided 5-4.
Majority: Cardozo, Brandeis, Hughes, Roberts, Stone. Dissenting:
McReynolds. Separate dissent: Sutherland, Van Devanter. Separate
dissent: Butler.
[49]
Ruling: “Stewart Machine Company v. Davis.” U.S. Supreme
Court. May 24, 1937. Case 301 U.S. 548. Decided 5-4.
Majority: Cardozo, Brandeis, Hughes, Roberts, Stone. Dissenting:
McReynolds. Separate dissent: Sutherland, Van Devanter. Separate
dissent: Butler.
TITLE III-GRANTS TO STATES FOR UNEMPLOYMENT COMPENSATION
ADMINISTRATION APPROPRIATION
SECTION 301. For the purpose of assisting the States in the
administration of their unemployment compensation laws, there is
hereby authorized to be appropriated, for the fiscal year ending
June 30, 1936, the sum of $4,000,000, and for each fiscal year
thereafter the sum of $49,000,000, to be used as hereinafter
provided.
PAYMENTS TO STATES
SECTION 901. On and after January 1, 1936, every employer (as
defined in section 907) shall pay for each calendar year an
excise tax, with respect to having individuals in his employ,
equal to the following percentages of the total wages (as
defined in section 907) payable by him (regardless of the time
of payment) with respect to employment (as defined in section
907) during such calendar year:
(1) With respect to employment during the calendar year 1936 the
rate shall be 1 per centum;
(2) With respect to employment during the calendar year 1937 the
rate shall be 2 per centum;
(3) With respect to employment after December 31, 1937, the rate
shall be 3 per centum.
CREDIT AGAINST TAX
Section 902. The taxpayer may credit against the tax imposed
by section 901 the amount of contributions, with respect to
employment during the taxable year, paid by him (before the date
of filing of his return for the taxable year) into an
unemployment fund under a State law. The total credit allowed to
a taxpayer under this section for all contributions paid into
unemployment funds with respect to employment during such
taxable year shall not exceed 90 per centum of the tax against
which it is credited, and credit shall be allowed only for
contributions made under the laws of States certified for the
taxable year as provided in section 903.
….
[51]
Ruling: “Stewart Machine Company v. Davis.” U.S. Supreme
Court. May 24, 1937. Case 301 U.S. 548. Decided 5-4.
Majority: Cardozo, Brandeis, Hughes, Roberts, Stone. Dissenting:
McReynolds. Separate dissent: Sutherland, Van Devanter. Separate
dissent: Butler.
[52]
Book: Crime and the Justice System in America: An
Encyclopedia. Edited by Frank Schmalleger with Gordon M.
Armstrong. Greenwood Publishing, 1997. Page 179:
“PARENS PATRIAE. Literally, “parent of the country.” This
legal concept serves as the basis for state intervention when
the state removes a delinquent from the hone of his or her
parents. Effectible, parens patriae is an assumption of
responsibility by the state for the welfare of the delinquent
child.”
[54]
Ruling: “Carter v. Carter Coal Company.” U.S. Supreme Court,
May 18, 1936. Case 298 U.S. 238. Decided 6-3. Majority:
Sutherland, Butler, McReynolds, Roberts, Van Devanter.
Concurring: Hughes. Dissenting: Cardozo, Brandeis, Stone.
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?
page=us/298/238.html
The convention, however, declined to confer upon Congress
power in such general terms; instead of which it carefully
limited the powers which it thought wise to intrust to Congress
by specifying them, thereby denying all others not granted
expressly or by necessary implication. It made no grant of
authority to Congress to legislate substantively for the general
welfare, United States v. Butler, supra,
297 U.S. 1 , at page 64, 56 S.Ct. 312, 102 A.L.R. 914; and
no such authority exists, save as the general welfare may be
promoted by the exercise of the powers which are granted.
Compare Jacobson v. Massachusetts,
197 U.S. 11, 22 , 25 S.Ct. 358, 3 Ann.Cas. 765.
…
Replying directly to the suggestion advanced by counsel in
Kansas v. Colorado {1907},
206 U.S. 46, 89 , 90 S., 27 S.Ct. 655, 664, to the effect
that necessary powers national in their scope must be found
vested in Congress, though not expressly granted or essentially
implied, this court said:
‘But the proposition that there are legislative powers
affecting the nation as a whole which belong to, although not
expressed in the grant of powers, is in direct conflict with the
doctrine that this is a government of enumerated powers. That
this is such a government clearly appears from the Constitution,
independently of the Amendments, for otherwise there would be an
instrument granting certain specified things made operative to
grant other and distinct things. This natural construction of
the original body of the Constitution is made absolutely certain
by the 10th Amendment. This Amendment, which was seemingly
adopted with prescience of just such contention as the present,
disclosed the widespread fear that the national government
might, under the pressure of a supposed general welfare, attempt
to exercise powers which had not been granted. With equal
determination the framers intended that no such assumption
should ever find justification in the organic act, and that if,
in the future, further powers seemed necessary, they should [298
U.S. 238, 294] be granted by the people in the manner they had
provided for amending that act.’
The determination of the Framers Convention and the ratifying
conventions to preserve complete and unimpaired state
self-government in all matters not committed to the general
government is one of the plainest facts which emerges from the
history of their deliberations. And adherence to that
determination is incumbent equally upon the federal government
and the states. It is safe to say that if, when the Constitution
was under consideration, it had been thought that any such
danger lurked behind its plain words, it would never have been
ratified.”
[55]
Ruling: “A.L.A. Schechter Poultry Corporation v. United States.”
U.S. Supreme Court, May 27, 1935. Case 295 U.S. 495.
Decided 9-0. Majority: Hughes, Brandeis, Roberts, Sutherland,
Van Devanter, McReynolds, Butler. Concurring: Cardozo, Stone.
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?
page=us/295/495.html
Extraordinary conditions may call for extraordinary remedies.
But the argument necessarily stops short of an attempt to
justify action which lies outside the sphere of constitutional
authority. Extraordinary conditions do not create or enlarge
constitutional power. The Constitution established a national
government with powers deemed to be adequate, as they have
proved to be both in war and peace, but these powers of the
national government are limited by the constitutional grants. …
Such assertions of extraconstitutional authority were
anticipated and precluded by the explicit terms of the Tenth
Amendment- ‘The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.’
…
Congress cannot delegate legislative power to the President
to exercise an unfettered discretion to make whatever laws he
thinks may be needed or advisable for the rehabilitation and
expansion of trade or industry. In view of the scope of that
broad declaration and of the nature of the few restrictions that
are imposed, the discretion of the President in approving or
prescribing codes, and thus enacting laws for the government of
trade and industry throughout the country, is virtually
unfettered. We think that the code-making authority thus
conferred is an unconstitutional delegation of legislative
power.
…
It is not the province of the Court to consider the economic
advantages or disadvantages of such a centralized system. It is
sufficient to say that the Federal Constitution does not provide
for it
…
Without in any way disparaging this motive, it is enough to
say that the recuperative efforts of the federal government must
be made in a manner consistent with the authority granted by the
Constitution.
[58]
Book: Documents of American History. Volume 2 (since
1898). Edited by Henry Steele Commager. Prentice-Hall, 1973.
Pages 387-391:
ADVERSE REPORT FROM THE COMMITTEE ON THE JUDICIARY
…
[I]t undermines the protection our constitutional system
gives to minorities and is subversive of the rights of
individuals.
[Signed by the following Senators on the Judiciary
Committee.]
William H. King (D)
Frederick Van Nuys (D)
Patrick McCarran (D)
Carl A. Hatch (D)
Edward R. Burke (D)
Tom Connally (D)
Joseph C. O’Mahoney (D)
William E. Borah (R)
Warren R. Austin (R)
Frederick Steiwer (R)
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