Wednesday, August 31, 2005

Disaster Relief and the Constitution: A History of "Strict Construction"


Our prayers and best wishes go out to our friends in New Orleans and in the states of Louisiana, Mississippi and Alabama who have been hit by the effects of Hurricane Katrina. Today the federal government has several programs in effect for providing disaster relief to individuals, localities and states when natural disaster strikes, and no one questions the right and the duty of the federal government under the Constitution to do this.

It was not always thus.

One of the earliest and most contentious debates during the first years of the Constitution's history was whether or not the federal government had the power, under its authority "to pay the debts and provide for the common defence and general welfare of the United States," to spend money for disaster relief for a specific community. Jeffersonian strict constructionists argued that the words "general welfare" precluded such a power, arguing first, that the general welfare clause only gave Congress the power to spend on behalf of one of its other enumerated powers, and second, that even if the power to spend for the general welfare were an independent power, Congress could not devote money to a specific locality or region, but must spend for the entire country as a whole, i.e., "the general welfare of the United States." Loose constructionists, following Alexander Hamilton, argued that the general welfare clause gave Congress a separate power, and that the clause gave Congress wide latitude to spend money to promote what it viewed as conducive to the general welfare. (N.B.: the discussion that follows is drawn from the upcoming Fifth edition to Brest, Levinson, Balkin, Amar and Siegel, Processes of Constitutional Decisionmaking (Aspen 2006), and, in particular, to the wonderful work of my colleague Sandy Levinson).

The strict constructionist/state's rights position which was offered by Jefferson's party caused the Republicans political embarrassment because of floods and fires that occurred in the South, where the Republicans were strongest.

As David Currie writes in THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 1789-1801, at 224 (1997):

A fire that devastated the Georgia port city of Savannah presented a spectacular opportunity for Hamilton's disciples, for the idea of aiding the victims had obvious emotional appeal for Southern Representatives, many of whom were ideologically allergic to federal spending…. One has the sense that wily Federalists were hoping to slip this one by on sympathy grounds, only to employ it mercilessly as a precedent later on.

Despite this, the Jeffersonian Republicans, claiming that they were being faithful to the original understanding, refused to support federal funds for a specific area of the country.

Hamilton's view has won out, which is why nobody in the federal government today has any constitutional qualms about sending federal money and assistance to New Orleans. Professor Michele Landis Dauber at Stanford Law School has done some excellent work on the history of disaster relief and its connection to the modern regulatory and welfare state, see, for example, Michele Landis Dauber, The Sympathetic State, 23 Law and History Rev. 387 (2005); Michelle L. Landis, Let Me Next Time be "Tried by Fire": Disaster Relief and the Origins of the American Welfare State, 1789-1874, 92 Northwestern U. L. Rev. 967 (1998).

Reasoning along similar strict constructionist lines, President James Madison (who had supported federal disaster relief) vetoed a bill for using federal money to build canals and other internal improvements in 1816, arguing that

To refer the power in question to the clause "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust.

If the views of strict constructionists in the early years of the republic had prevailed, there would be little that the federal government could do today by way of relief expenditures or internal improvements to help the people hurt by Hurricane Katrina; that is so even though the devastation included more than one state. (As today, some disasters during the country’s first century involved more than one state, and the internal improvements bill that Madison vetoed offered assistance to many different states and localities and facilitated interstate transportation.)

Although there were several successful appropriations for disaster relief in the 19th century, strict constructionist objections that such appropriations went beyond the Constitution's limited and enumerated powers did not entirely cease. In 1887, Democratic President Grover Cleveland vetoed a bill “to enable the Commissioner of Agriculture to make a special distribution of seeds in the drought-stricken counties of Texas, and making an appropriation thereof.” Although Cleveland admitted that distributing relief could mitigate the drought and prevent future disasters, he argued that it was beyond a strict construction of the federal Constitution:

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 [as with veterans, for example] or benefit. A prevalent tendency to disregard the limited mission of [national] 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.

Cleveland went on to argue that “[f]ederal 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 strengthens the bonds of a common brotherhood.”

Fortunately, the constitutional text does not require so narrow a construction as Madison, Cleveland and various state's rights politicians have contended for over the years, and a wiser and more liberal interpretation (in both the older and the newer senses of that word) has prevailed, first in the case of disaster relief, and later in the case of internal improvements. By 1888, the Supreme Court upheld legislation that provided partial federal financing for interstate railroads, in the California Railroad Cases, 127 U.S. 1 (1888); however, Justice Bradley relied on the commerce power rather than the spending clause, as we would today. By the New Deal it was long settled that Congress could spend money for “the general welfare” directed at specific localities and regions, including, for example, the Tennessee Valley Authority. In this area at least, strict construction has lost out to loose construction, and it’s a good thing too. There is no doubt that Congress can and has abused its powers to tax and spend– every year we seek more and more pork in the federal budget. But preventing Congress from providing disaster relief to specific areas of the country, as strict constructionists argued early in the country’s history, is not the right solution to the problem. The remedy for bad decisions about public money has to be found within the democratic process itself.


This ties in nicely with your living constitution article. Although, Sandefur may consider it another straw man or red herring.

So if today's Federalist Society had been established during this earlier period when the Federalist Party dominated, would it have been more appropiately called the Anti-Federalist Society? Let's hear a cheer from its members for Thomas Jefferson and his Republican/Democrat States Rights party!

The problem would be that the Federalist Party of the 1790s was generally supportive of a strong executive, including in the area of foreign and military concerns. This matches the views of many Federalist Society sorts today.

So, the Federalist Society/D-R parties don't quite match-up.

The question is whether federal spending on localized disasters is for the "general welfare." Answering "yes" is entirely consistent with an originalist/strict constructionist judicial philosophy, provided the federal government has a policy of spending on other localized disasters nationwide whenever they occur.

In contrast, if the federal government were to adopt a policy of only spending on local disasters in towns where U.S. Senators reside, or in states that are controlled by the majority party in Congress, then the localized spending would obviously not be for the "general welfare."

One would hope that people who consider themselves "strict constructionists" nowadays would not be simplistically criticized for what people did under the same banner two hundred years ago. The labels "strict constructionist" and "loose constructionist" are in some ways relative terms. For example, alongside Justice Stevens, almost anybody looks like a "strict constructionist." Just because someone is considered a strict constructionist today does not mean that the same person with the same views would have been considered a strict constructionist two hundred years ago.

Re: Joe’s comment on my Federalist Society comment.

Has there been a comparative study of Federalist Society views and positions to those of the Federalist Party and the Anti-Federalist Party? My thoughts have been influenced by my recent read of “Adams vs. Jefferson, The Tumultuous Election of 1800” by John Ferling (Oxford 2004). While John Adams was indeed a Federalist, he was not as hard core as Alexander Hamilton in seeking a strong central government that would be conducive to the need for the economic growth of the U.S. (Justice Marshall as a Federalist appears to have been closer to Hamilton than to Adams.) Foreign policy, as well as states rights, were at issue in this campaign, with Hamilton especially seeking ties to England in comparison with Jefferson’s attitudes towards France. (Thankfully Adams had prevented a foreign conflict with these countries in the final year of his term.) Once it was clear that the election results eliminated Adams and the other Federalist, it was a contest between Anti-Federalists Jefferson and Aaron Burr. As much as Hamilton detested Jefferson, he detested Burr even more – this was before the situation that lead to the duel between Hamilton and Burr – and so he provided support of some Federalists in casting votes that eventually resulted in Jefferson taking office. Perhaps current day Federalist Society members share views and positions of both the Federalist and Anti-Federalist Parties which may suggest “What’s in a name ….”

"One would hope that people who consider themselves "strict constructionists" nowadays would not be simplistically criticized for what people did under the same banner two hundred years ago."

Indeed - otherwise we might have to dig into the far-from-pretty history of the Democratic Party and the things done in its name.

To follow-up, I agree with Shag's general sentiments. The meaning of polical labels have changed over time, so "Republicans" today are different from those of the past, and vice versa.

As to Adams (Marshall being his choice as well as his Secretary of State, and supported Adams while being a member of Congress), it would be interesting to compare the two. Marshall did take some of Hamilton's ideas for his opinions, but in other ways, seems a bit more pragmatic ala Adams.

But, I leave it to others to give a fuller comparison.

The LATimes has an interesting article "The subtext of the Roberts nomination" by Crispin Sartwell on textual interpretation, adding to originalism and a living constitution philosophy's "hermeneutics", the art of interpretation, more recently advanced by Hans Georg Gadamer in his "Truth and Method". There have been a number of law and hermeneutics articles in fairly recent years but the concept has not caught on with mainstream constitutional scholars to modify originalism, textualism, living constitution, etc.

What if back in 1787 some of the founding fathers had 20-20 foresight and anticipated disputes on how to interpret the Constitution. Might they have suggested adding a provision for guidance in interpretation or might they have realized that locking in interpretive methods would have created even greater problems? The founding fathers did provide for an army and a navy, but not an air force. They referenced arms in the Second Amendment, not guns (nor suitcase dirty bombs). They did anticipate invention with the patent clause; but does the current meaning of invention square with the meaning back in 1787? And they understood commerce; but if (per Justice Thomas) the then meaning of commerce was very limited, and it had been strictly applied over the years, where might our economy be today?

Justice Scalia said this on March 15, 2005:

"I’m not a strict constructionist, despite the introduction. I don’t like the term 'strict construction'. I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description 'strict'. I do believe however, that you give the text the meaning it had when it was adopted."

There in lies the problem, determining the meaning it had when it was adopted. The original meaning was different for different people. If Hamilton and Madison couldn't agree on the meaning of "general welfare", what hope is there for a Justice on today's Court. Well, that's why they get paid the big bucks.

Since we can't even get people to stop using original intent as a synonym for originalism - pause to insert eyeroll despite Scalia explicitly rejecting it on numerous occaisions, and spending a good chunk of AMoI rejecting the validity of intent - then there's little hope of stopping them using "strict constructionist". Certainly not on a blog the owner of which wrote this.

If Judge Roberts is confirmed, and he turns out to be excessively and exorbitantly deferential to executive authority (which is highly unlikely), then he could hypothetically hold that the four-year term of an American president refers to Martian years instead of Earth years, thus gaining George W. Bush additional time in office.

Nothing in the constitutional text says that "years" refers to "Earth years." So, there is no text to stop the Constitution from evolving in that absurd direction. There is only one thing stopping that absurd event from happening: the clear and ordained INTENT of the framers. As Lincoln said in his first inaugural address, "The intention of the lawgiver is the law." If the framers had a clear ordained intent, then that intent must govern. There is no serious alternative, unless you favor oligarchy.

Often there will be sincere disagreements about what the intent of the framers was. But that is a ridiculous reason for dispensing with intent altogether.

I'm sorry, but I can't sign on to that. We are constrained by the words the framers used, not what their intentions might have been, for exactly the reasons Scalia gives in AMoI regarding statutory interpretation.

Now, an investigation into the Framers' likely intent or purpose may be relevant to the extent that, if there is uncertainty as to what a clause means, people rarely choose words for a clause that are entirely inapposite to their intention in writing it. But it is the law which is adopted that is binding, not what any one person who voted for it might have intended. I think there's a very good argument that original intent would overrule Brown, but original meaning certainly does not. So it's more than just a semantic distiction.

Or, as Nino puts it:

"The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."

Now, it's true that "nothing in the constitutional text says that 'years' refers to 'Earth years'" - but it does not follow from that statement that ONLY original intent requires it to mean "earth years". The original understanding, quite obviously, mandates the same result, and it does so with much greater validity.

Simon, I really don't think we have a disagreement here. In my previous comment, I referred to the "clear and ordained intent" and the "clear ordained intent." In other words, I acknowledge that it's not enough that the framers had some secret intention; they must have also believed they were ordaining that intention by the words they used. So, I really don't think we have a difference of opinion here.

As for Justice Scalia's comments about words having the meaning that the American people at the time would have understood, I'd have to disagree with that a little bit. Most Americans didn't have the slightest idea what a "letter of marque" was or what "habeas corpus" was. Yet, those terms had precise legal meanings that should bind us today, and those clauses should not be ignored, much less infused with some new meaning. More problematic, the Constitution also contains some ordinary-sounding words that had precise technical meanings which were established by prior legal decisions and prior legal treatises. Those meanings should be binding on us too, I think, if it's likely that that's what the framers and ratifiers meant.

I'm not sure if "most" Americans of the era had no idea what the "great writ" was in that many of their fellow citizens used it to defend themselves, including those involved in illegal trading etc. "Letter of marque" is a bit more obscure, though many ordinary sorts were privateers, so again, it wasn't really an obscure term.

It seems a reach to suggest that the text presupposes "precise technical" meanings found in legal treatises and the like. This assumes a Constitution for lawyers, not for "we the people" or even most representatives in office who carried it out. Actually, the terms were greatly disputed, from a to z.

Anyway, one legal concept was common law. The Constitution furthered the theme. The terms had some ability to grow over time, just as those who railed against the crown for violating the "Magna Charta" et. al. did so by resorting to a gloss that grew over time.

Joe, if terms can grow, they can also shrink. I don't think the Framers wanted to allow the judiciary to shrink the Constitution down to nothing.

As for the common law, Hamilton wrote this in Federalist 84:

"to the pretended establishment of the common and statute law by the [New York] constitution, I answer, that they are expressly made subject 'to such alterations and provisions as the legislature shall from time to time make concerning the same.'"

A common law that couldn't be modified by legislatures was completely foreign to the founders of our country.

This comment has been removed by a blog administrator.

Can someone please explain how the original post regarding disaster relief and strict construction is something more than a mere appeal to pity argument? The strongest claim made is that the original text of the constitution does not forbid federal spending on disaster relief, but cites no greater authority than that cited by the opponents of that claim, namely that the judiciary and executive branches began interpreting the constitution as such.

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