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I am going to post this in several places, just in case anyone out there in the blogosphere finds it useful in making a case against Alito. I spent just a few hours on the research, so if you find this useful/convincing at all, please double-check it on your own, and supplement it with your own rearch. This is just meant to raise some important issues, etc.
Does Originalism Threaten the Future of Social Security & Medicare?
Justice Scalia, Justice Thomas, Judge Bork and others have long argued that the Constitution should be interpreted based on how its text was originally understood at the time such text was ratified. Both among themselves and among various other originalists, they disagree about the proper role of stare decisis, in particular about to what degree stare decisis sets limits for the Court when the original meaning of Constitutional text in question conflicts with long-held doctrine. For example, Scalia and Thomas both agree that the current understanding of the commerce clause is inconsistent with the clause’s original meaning, as generally understood at the time of ratification. At a minimum, both are willing to set new limits on Congressional power that are more consistent with their originalist understanding of the commerce clause, even if such limits depart from the Court’s precedent’s to some degree. Thomas is generally willing to go much farther, and largely reject the use of stare decisis altogether, when it conflicts with the proper original understanding, whereas Scalia calls himself a “faint-hearted originalist” who sees stare decisis as a pragmatic exception to his originalist philosophy.(1)
Depending on the future composition of the Court, and whether and to what degree new Justices joining the Court share the originalist views of Thomas or Scalia, the Court may set significant new limits on Congressional power to regulate under the commerce clause, with radical policy implications. This much is clear. What is less obvious is that the Court, if controlled by a Thomas-Scalia led radical originalist block (possibly including Chief Justice Roberts and Justice Alito – if the latter is confirmed), might also create sharp new limits on the power of Congress to spend.
In recent years, there have been a large number of law review articles and books written on how various provisions of the Constitution were originally understood at the time of ratification. Most of these articles are written by conservative law school professors, and most have reached the conclusion that the current Court view on the Constitutional provision in question is sharply inconsistent with the provision’s original meaning. One particular area of focus, especially within the last few years, has been on the Spending Clause,(2) which has been interpreted by the Court for many years to mean Congress has broad power to spend on behalf of the general welfare, as Congress understands it.(3) Several originalist scholars have critiqued this view and argued that the Spending Clause in fact gives Congress no additional powers to spend, but rather acts as limit on Congressional power to spend when it exercising its otherwise enumerated powers.(4) The implications of at least some of this scholarship is that Congress cannot spend money on any program that is not specifically authorized under some other section of the Constitution, such as post offices, armies, navies, or protecting patents and copyrights. If a majority of the Court accepted this view of the spending clause, then the Court could potentially prohibit Congress from spending on a wide range of areas, including, for example, on the rebuilding of New Orleans.(5)
How would this limitation affect government programs as Social Security and Medicare? In the 1937 case Helvering v. Davis, the Supreme Court upheld the Social Security Act as within the "penumbra" of the term “general welfare” within the Spending Clause.(6) If the Court were to follow the originalist view on the Spending Clause, it could very well reject its precedent in Helvering and declare Social Security unconstitutional, finding the program is neither authorized under the commerce clause nor any other text of the Constitution. Presumably, the Court could make a similar finding regarding Medicare. Would any originalist seriously argue that the Constitution, as it was understood at the time of ratification, authorized programs like Social Security and Medicare? If the Court ever includes a majority of Justices who follow the views of Justice Thomas, it is difficult to see how the Court could do anything but strike down the Social Security and Medicare Acts, given Thomas’s view on stare decisis. Has Judge Alito given any indication that he would take a different approach from Justice Thomas?
End Notes:
(1)Antonin Scalia, A Matter of Interpretation (1997) p. 140.
(2) 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…”
(3) See See Robert G. Natelson, THE GENERAL WELFARE CLAUSE AND THE PUBLIC TRUST: AN ESSAY IN ORIGINAL UNDERSTANDING, University of Kansas Law Review, November, 2003, p. 4 (“The General Welfare Clause is one of the two principal constitutional pillars supporting the modern federal welfare state -the other being the Commerce Clause. While the Commerce Clause supports most unfunded federal regulation, the General Welfare Clause is said to include an implied spending power used to justify federal spending programs and the regulatory conditions attached to them. For that reason, the General Welfare Clause sometimes is called the Spending Clause.”); see also United States v. Butler, 297 U.S. 1, 64-66 (1936 South Dakota v. Dole, 483 U.S. 203, 206-07 (1987), Oklahoma v. Civil Service Commission, 330 U.S. 127, 144 (1947). Helvering v. Davis, 301 U.S. 619, 640 (1937), and Steward Machine Co. v. Davis, 301 U.S. 548, 586-87 (1937).
(4) See Robert G. Natelson, THE GENERAL WELFARE CLAUSE AND THE PUBLIC TRUST: AN ESSAY IN ORIGINAL UNDERSTANDING, University of Kansas Law Review, November, 2003, pp. 54-55. “The current Supreme Court interpretation, the Hamilton-Story view, stands the original meaning of the General Welfare Clause on its head. The Clause was not a qualified grant of spending authority, as Hamilton and Story claimed. Nor did it merely point to other powers, as Story understood Madison to have said. On the contrary, the General Welfare Clause was an unqualified denial of spending authority. It did not add to federal powers; it subtracted from them.
The General Welfare Clause was designed as a trust-style rule denying Congress authority to levy taxes for any but general, national purposes. Because the Clause prevented Congress from using tax revenue for local or special interest purposes, the Clause indirectly qualified the appropriation power. Even if some enumerated power could be enlisted to support the appropriation, federal tax money was not to be used for the private benefit of a museum-however worthy-in Savannah, nor an artist-however struggling-in New York.”) (emphasis added). See also, Jeffrey Renz, WHAT SPENDING CLAUSE? (OR THE PRESIDENT'S PARAMOUR): AN EXAMINATION OF THE VIEWS OF HAMILTON, MADISON, AND STORY ON ARTICLE I, SECTION 8, CLAUSE 1 OF THE UNITED STATES CONSTITUTION, John Marshall Law Review, Fall, 1999, p. 142-3 (“Thus, neither Madison nor Story nor Hamilton were fully correct in their measurement of the General Welfare Clause. The clause is not a mere introduction to the enumerated powers that follow. Neither is it a grant of power to spend. It cannot be a spending power without expanding or eliminating the limitations on power expressed in the clauses that follow it. The General Welfare Clause is a nullity when considered solely against Congress' enumerated powers. But when considered against the powers granted to the other branches, it makes sense as an indirect check on the Executive.”); John C. Eastman, RESTORING THE "GENERAL" TO THE GENERAL WELFARE CLAUSE, Chapman Law Review, Spring 2001. (“For the first eighty-five years of our nation's history, under both the Articles of Confederation and the Constitution, the language of "general welfare" was viewed as a limitation on the powers of Congress, not as a grant of plenary power. If the Court would re-assert that limitation as it has reasserted the original limitations of the commerce clause, the major federalism decisions of the past decade would be anything but much ado about nothing.”)
(5) Eastman, supra at 79 (“And the Fourth Congress did not even believe it had the power to provide relief to the citizens of Savannah, Georgia after a devastating fire destroyed the entire city.”) Eastman argues that the original understanding of the words “general welfare” in the Spending Clause was to limit Congressional spending, even that which was otherwise authorized by other text of the Constitution, only to purposes that supported the United States in general, rather than in particular parochial interests. Among his arguments supporting this view is that early Congresses believed they did not have the power to fund particular roads and other infrastructure projects within a state or to rebuild after a fire. Presumably, that was because the early Congress believed it had no independent power, under the Constitution, to rebuild after a disaster such as a major fire.
(6) Helvering v. Davis, 301 U.S. 619 (1937), at 640.
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