Writing in the aftermath of yesterday’s Supreme Court’s decision to call a spade a spade — it’s not a mandate, honey, it’s a tax! — my friend Michael Walsh wrote a column called “Won’t Get Fooled Again.”
Except, of course, that we will.
Michael casts an acerbic eye back to Helvering v. Davis, the Supreme Court decision that said (I paraphrase) Congress can tax the hell out of you for anything it wants just so long as they say its for the “general Welfare,” whatever that is.
The issue back then was the Constitutionality of the newly minted tax known as the Social Security system. Was it not just a fancy mechanism for the government to raid your pocket in order to line its coffers?
Well, yes. But that’s not how Justice Cardozo saw it. “The discretion,” he said, “belongs to Congress” (“unless,” he added, jokester that he was, “the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.”)
Have you noticed how one man’s “arbitrary power” is another man’s legitimate “discretion”?
The really amusing thing about this whole charade of “sure-there-are-limits-on-Congress’s-power-to-obliterate-the distinction-between-meum-and-tuum” when it comes to your (“your”?) property is the venerableness of its historical precedent. Back in the late 1780s when Madison and Hamilton were trying to get the recalcitrant former colonists to line up and ratify the Constitution, they faced this issue squarely. At least Madison, who was far more concerned with placing limits of state power than his pal, faced it.
“Is the aggregate power of the general [we would say “federal”] government,” he asked in Federalist 41, “greater than ought to have been vested in it?”
It was a question Madison worried about. And he spent the balance of that number of the Federalist, and many others, trying to convince his readers (and, one suspects, sometimes even himself) that the answer was No: the government has to be vested with great powers but we have (famous word) “enumerated” them so as to limit them.
Part of Federalist 41 concerns the military and how much power the government ought to have to pay for it. But the second half deals with those bits of Article 1, Section 8 of the Constitution that bear upon Congress’s power to “levy and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; . . .”
Seems pretty straightforward, doesn’t it? But exactly how far does said power reach? A lot of people worried about that. Was this not an “unlimited commission” to exercise power? No, no, said Madison. “No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.”
Congress has power, including the power to tax. But, Madison says to the skeptics, those powers are enumerated. So not to worry. Sure, “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.” But the framers were careful to lay out the powers given to Congress. So:–
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?
Got that? Not even a full stop separates the investiture of Congress with power from the qualification and limitation of those powers. Madison’s logic is irresistible:
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?
You have to admire the clarity of his thought and the power of his expression:
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 . . .
I’m convinced. Unfortunately, the pressure of political expediency soon made mincemeat of Madison’s logic. We want to take more of your money. Does the Constitution limit our power to do that? Let’s have another look at that document and see what a little hermeneutical ingenuity, leavened by bad faith, fired by the desire to appropriate other people’s property, can do.