Defending The Virtue of the Nation Against New Deal Politics

In the time when the Founders were writing the Constitution, they believed they were writing for a “virtuous nation,” one whose people valued liberty, freedom and self-government in the small-sized central government and among the several states in which they lived.  Furthermore, one of the most frequently used words during the Constitutional Convention was the word “corruption.”  We must stop “corrupt spending!” they said.  The colonists, primarily from England, knew of the corruption in Parliament and by the King.  Perhaps a majority of the Founders thought while they themselves would not corruptly use spending for their state as a means of furthering their ambitions, others would. 

In the First Congress of the United States (1790) a congressman introduced an appropriation for the government to guarantee a loan to a glass manufacturer.  Congress did not approve.  Thereafter, repeated attempts were made to qualify spending for unconstitutional purposes by use of the Spending Clause, Article I, Section 8, Clause 1.  This clause uses the words “General Welfare,” as means of controlling political patronage by establishing a requirement the benefit had to be for nation as a whole and not some individuals or limited numbers of States.  All these appropriations were, over time, vetoed by the Presidents until the Great Depression.  President Buchanan’s veto message explains the Constitution and his reasons exceedingly well.  In part he wrote:  “The idea that resources of the central government could be used to carry into effect any measure of state domestic policy, that Congress saw fit to confer would be utterly at war with the well-known jealousy of federal power which prevailed at the formation of the Constitution.”    

The Constitution was not regularly challenged as before until President Roosevelt had his “Brains Trust” drafted legislation for national regulation of the economy.  Such an act was the Agricultural Adjustment Act (AAA) passed in 1933.  The AAA taxed processors of agricultural products, and offered the taxes collected to farmers, if they signed contracts reducing their production.  The intent was to raise agriculture prices.  A processor sued claiming the tax was unconstitutional. The government claimed it was covered by The Spending Clause both as to the tax and spending.  The Supreme Court heard the case as United States v. Butler, 297 U.S. 1 (1936) and held the AAA:  “Invades the reserved powers of the States.  Regulation and control of agricultural production are beyond the powers delegated to the Federal Government. If the novel view of the General Welfare Clause now advanced in support of the tax were accepted, that clause would not only enable Congress to supplant the States in the regulation of agriculture and of all other industries as well, but would furnish the means whereby all of the other provisions of the Constitution, sedulously framed to define and limit the power off the United States and preserve the powers of the State could be broken down, the independence of the individual States obliterated, and the United States converted into a central government exercising uncontrolled police power throughout the Union superseding all local control over local concerns.”  Furthermore, even though stated as a tax in the statute, it was not a tax, but a means of regulation that merely passed through the government in route to somewhere else.  

In view of the government’s case being supported by the spending clause, the court concluded: “The Court is not required in this case to ascertain the scope of the phrase “general welfare of the United States,” or to determine whether an appropriation in aid of agriculture falls within it.  The fact an economic emergency exists does not override Congresses’ lack of power under The Constitution.”  But it does determine Congress lacks power to regulate agriculture!                                                                                 September 14, 2020