Neo-Anti-Federalism

[Calvin Johnson]

Clause 1 does require Congress to tax and spend for the common Defence and
General welfare.  As Noah Webster said, if Congress goes beyond the common
Defence and General welfare in its tax and spending policy that would be an
usurpation.  But the founders did not mind tax and spend used as a kind fo
regulation, if we cite examples from the debates, and no one used tax and
spend as a strong wall cabining Congressional pwoer.   Thus the fact tax
and spend is used as a means to regulate for the common Defence and General
welfare is not a valid constituitonal objeciton.   To find a fenced in area
smaller than common Defence and General welfare is to rewrite clause 1.
Clause 1 was added late in the Convention (Sept 4 , I think), as the final
statement in what had been a controversial issue, .and it trumps all that
went before.

At 04:34 PM 11/18/2000 -0500, you wrote:
>i don't think it is responsive at all, actually.  ann's question went to
whether you believed, per dole's majority, and certainly its dissent, that
there had to be a relation between the condition and the expenditure.  that
does not necessarily have anything to do w/ state's "rights" - actually it
has to do with cabining congress within its lawfully granted powers under
art I of the C.  if congress can attach any condition to any expenditure,
then anything that is outside of congress' art I powers it can achieve by
making it a condition on a grant.
>
>one response would be to bar conditions that exceeded the art I powers,
but that position can't be right and was rejected long ago.
>
>one alternative is to require a relationship between condition and
expenditure.  this too, however, seems too amorphous.  in an article tom
mccoy and i wrote some time ago (and in an amicus brief which justice
o'connor quoted, dissenting in dole), we argued the correct test is that
the condition has to say how the money should be spent, as opposed to
simply imposing a regulatory condition as a random string on the expenditure.
>
>but again, and importantly, this does not have to be seen as a "state's
rights"  argument of the printz/ny v. us ilk
>
>
>Barry Friedman
> Professor of Law
>NYU School of Law
>40 Washington Square South
>Room 317
>New York, NY  10012
>
>(212) 998-6293
>
>
>>>> chjohnson at MAIL.LAW.UTEXAS.EDU 11/18/00 04:26PM >>>
>I find the new federalism to be illegitimate.  The Constituion is an angry
>anti-state document, written to create a new government supreme over the
>states and invading their internal police.  Madison who thought out  the
>philosophy that set the agenda thought that the states would frequently and
>flagrantly abuse individual rights and needed to be reigned in.  The
>Framers were irate at the immoral states for failing to pay the
>requisitions and making it impossible to avoid defaults on the
>Revolutionary War debts.  The crisis that caused was a fiscal crisis and
>the C was written to allow the Federal government to operated directly ont
>he people without going through the states.
>        States are not rigthts bearing entities under the C. as written and
>intended.  The federal government is the protector of individual rights
>against the evil states.  Giving rights to states commonly means
>necessarily abusing the rights of individual (eg the Senate).  The congress
>under the Articles of COnfederation operated only by commandeering state
>employees and under the C the Congress was to have every thing it had and
>then some; it is nonsense to require separate federal gun police as if gun
>law were some alien law instead of the supreme law of the land.   The 11th
>Amendment is a home court for decision rule, and not a source of state
>immunity and there is also no other legitimate source.   The Federal
>government can operate by tax and spend under clause 1 to provide for the
>general welfare and common defence and if the tax and spend drift into
>regulation that was all right too under the original meaning  The general
>jurisdiction of the COngress is found in clause 1, where it shoudl be,
>which is to provide for the common defence and general welfare.  There is
>no Constitonal value to be weighted on the other side, because the
>Constituion document is an anti-state vector only.    The distinctions to
>be made within some future expansion of neo-Anti-Federalism are
>illegitimate and uninteresting.
>        Does that answer the Q?
>
>At 10:45 AM 11/18/2000 -0600, you wrote:
>>So you do challenge the notion that there is a requirement of a
>>relationship between the spending and the condition? In any case, my
>>original post was predicting the future based on other federalism-based
>>developments. I would predict an increase in the required connection, and
>>certainly not an abandonment of the notion that there needs to be
>>one--especially if Congress uses conditioned spending as a way around other
>>limitations on its power
>>
>>Ann
>>
>>>The holding is fine, the dicta should have been better tested with the text
>>>and original intent.    But then that is why we call it dicta.
>>>
>>>At 02:10 PM 11/17/2000 -0600, you wrote:
>>>>>I think they can attach conditions to spending so long as they stay
within
>>>>>the (admittedly broad) common defence and general welfare.   Clause 1 of
>>>>>section 8 art I counts.
>>>>
>>>>In other words, you reject the doctrine elaborated in Dole?
>>>>
>>>>Ann
>>>>
>>>>
>>>>
>>>>>
>>>>>
>>>>>At 01:10 PM 11/17/2000 -0600, you wrote:
>>>>>>(Not sent to the list.)
>>>>>>
>>>>>>My post relates to the ability to attach conditions to spending, so
>I'm not
>>>>>>really sure what point you're making.
>>>>>>
>>>>>>Ann
>>>>>>
>>>>>>
>>>>>>>The tax and spend for the common defence and General Welfare states the
>>>>>>>general jurisdiction of the Congress.  The founders did not draw a hard
>>>>>>>line between regulation and tax, so the clause 1 power will inevitably
>>>>>>>spill over.  But the pwoer needs to spill over from a strong base of
tax
>>>>>>>and spend to provide for the common defence and general welfare, rather
>>>>>>>than contract to an enclave less than all of that.   Lord, knows we may
>>>>>>>need to have Congress provide for the common defence and general
welfare
>>>>>>>and the founders would not have wanted to hobble it.
>>>>>>>
>>>>>>>At 08:46 AM 11/17/2000 -0600, you wrote:
>>>>>>>>***The solution: 1) Under Chief Justice Rehnquist's 1987 SoDakota v
>Dole,
>>>>>>>>the federal "spending power" allows conditioning federal financial
>aid to
>>>>>>>>States on requirements "related to the federal interest".  We clearly
>>>need
>>>>>>>>added funding to modernize election administration, and of course to
>>>>>>>>condition the funds on including presidential with congressional
>>>elections,
>>>>>>>>is "related".  ***
>>>>>>>>
>>>>>>>>Isn't it flirting with danger to rely so heavily on South Dakota v.
>Dole?
>>>>>>>>We should remember that the state in that case declined to argue on
the
>>>>>>>>"relatedness" prong, since it regarded the "independent prohibition"
>>>of the
>>>>>>>>21st amendment to be such a strong argument. The majority just didn't
>>>look
>>>>>>>>closely at the attenuated connection between the spending and the
>>>>>>>>condition. Today, after all the emphasis on attentuated connection in
>>>cases
>>>>>>>>like Lopez and Morrison and all the renewed emphasis on federalism,
>which
>>>>>>>>sounds very much like the O'Connor dissent in Dole, perhaps the Court
>>>will
>>>>>>>>take a close look at relatedness, especially if Congress pushes too
>>>hard on
>>>>>>>>the spending power.
>>>>>>>>
>>>>>>>>Ann Althouse
>>>>>>>>
>>>>>>>
>>>>>>>Calvin H. Johnson
>>>>>>>Andrews & Kurth Centennial Professor of Law
>>>>>>>The University of Texas School of Law
>>>>>>>727 E. 26th St.
>>>>>>>Austin, TX  78705
>>>>>>>(512) 232-1306  (voice)
>>>>>>>FAX: (512) 232-2399
>>>>>>>Website:  http://www.utexas.edu/law/faculty/calvinjohnson
>>>>>>
>>>>>>
>>>>>
>>>>>Calvin H. Johnson
>>>>>Andrews & Kurth Centennial Professor of Law
>>>>>The University of Texas School of Law
>>>>>727 E. 26th St.
>>>>>Austin, TX  78705
>>>>>(512) 232-1306  (voice)
>>>>>FAX: (512) 232-2399
>>>>>Website:  http://www.utexas.edu/law/faculty/calvinjohnson
>>>>
>>>>
>>>
>>>Calvin H. Johnson
>>>Andrews & Kurth Centennial Professor of Law
>>>The University of Texas School of Law
>>>727 E. 26th St.
>>>Austin, TX  78705
>>>(512) 232-1306  (voice)
>>>FAX: (512) 232-2399
>>>Website:  http://www.utexas.edu/law/faculty/calvinjohnson
>>
>>
>
>Calvin H. Johnson
>Andrews & Kurth Centennial Professor of Law
>The University of Texas School of Law
>727 E. 26th St.
>Austin, TX  78705
>(512) 232-1306  (voice)
>FAX: (512) 232-2399
>Website:  http://www.utexas.edu/law/faculty/calvinjohnson
>

Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. 26th St.
Austin, TX  78705
(512) 232-1306  (voice)
FAX: (512) 232-2399
Website:  http://www.utexas.edu/law/faculty/calvinjohnson