Balkinization  

Wednesday, August 31, 2005

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.

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.


Comments:

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.
 

"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.
 

Andrew-
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.
 

Andrew,
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.
 

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.
 

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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