Clause 1 of the powers.

[Sanford Levinson]

Calvin Johnson writes:

>You dont need spending.
>        1.  You have conceded the major premise:  If you can tax for the
common
>defense and general welfare, you can regulate for the common defense and
>welfare.
>        2.  Clause 1 authorizes taxing for the common defense and general
welfare,
>        Ergo, Clause 1 authorizes regulation for the common defence
>Simple Aristotean syllogism.   [You gave it all away in 1. ]
>        (Also I dont have anything either way on spending and regulation
as either
>synonyms or antonyms.  The latter, antonym argument,  I find quite
>implausible however).

I may be dense, but I simply don't see why a concession that one might be
motivated to tax something because of a desire to regulate it entails that
one can regulate it directly without going through the means of taxation.
What one has to establish is what Calvin concedes cannot, i.e., that
"taxation" (or "spending") was synonymous with "regulation."  I would be
quite surprised if that is the case.  And, as a self-proclaimed textualist,
Calvin must explain why the Committee on Detail bothered to include the
rest of Article I, Section 8 after the first clause.  (Indeed, my favorite
conundrum, which I think I asked a year or two ago, is what possessed the
framers to specify a power to criminalize counterfeiting after authorizing
Congress to coin money.  If anything ever seems an implied power, it would
be counterfeiting of the national currency.)

>        Jefferson was not that great a textualist.  He was not there.

I don't understand how sentence two follows from sentence one.  It *would*
if the first sentence were that "Jefferson was not that great an
originalist," because one might think that "being there" was a great
advantage for originalist argument (thought a lot of good it did Madison or
Randolph with regard to the constitutionality of the Bank).  But the appeal
of textualism is that one need not do any historical research or have any
particular kinds of experience at all; one must simply read the text and
apply the rules of standard English.

Sandy Levinson