The pseudonym "Philo Vaihinger" has been abandoned. All posts have been and are written by me, Joseph Auclair.

Wednesday, April 3, 2013

A mere rhetorical flourish

The taxing and 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 defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

I take this part to be a nearly empty rhetorical flourish

and provide for the common defense and general welfare of the United States

best understood as equivalent to

and provide for the common defense and general welfare of the United States through the exercise of its powers as enumerated in this section or as stipulated elsewhere in this constitution

That is, and specifically, I take the reference to general welfare as neither an additional grant of power independent of the enumerated powers or those provided elsewhere nor as a limitation on the power to tax.

And I take it to have no more bearing on the question what congress may or may not do than the reference to the general welfare in the preamble of the constitution is generally taken to have.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.

That’s nice.

And ditto for the references to common defense.

Anyway, my view seems quite idiosyncratic in refusing both those options, I admit, given Wikipedia's account.

But the former option, quite as Jefferson insisted, makes it a grant of such sweeping and unrestrained power as to make the enumeration of powers the clause begins quite senseless.

And the latter implies the former.

That is, supposing it to be a mere qualification on the power to tax we have to read the thing as meaning

The congress shall have power to lay and collect taxes, duties, imposts and excises, for the purposes of paying the debts, providing for the common defense, and providing for the general welfare of the United States

And that surely implies congress has the powers to pay those debts, provide for that defense, and provide for the general welfare.

Why allow congress to collect taxes in order to do something it cannot do?

So this reading seems really as bad as the other.

And there is no justification whatsoever for taking the Federalist Papers, written by three men and mostly by just two, as gospel on the constitution or the intentions or understandings of the Framers, quite a politically diverse bunch, though it is good evidence on how these three (or two) understood things or wanted others to understand them.

Particularly given that Madison and others even in our own day have so often expressed the view that the constitution speaks for itself and is addressed to the understanding of the ordinary, non-specialist, and non-expert citizen.

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