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

JB

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.

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.

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.

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.