Clause 1 of the powers.
Michael McConnell
mcconnellm at LAW.UTAH.EDU
Wed Sep 13 14:50:52 PDT 2000
Maybe it is unprofitable to prolong this conversation, since Calvin Johnson
and I seem to be talking past one another. But I will try again. Very
simply:
(1) Congress is given power to regulate commerce among the several states,
and for some other enumerated purposes.
(2) Congress is given power to "provide for" the common defense and general
welfare, which in context appears to mean "spend money," and to impose taxes
for this purpose.
(3) Johnson presents evidence, which seems persuasive if anyone needed
persuading, that certain types of taxes (notably duties) were understood to
have a regulatory rather than just a revenue-raising purpose, and that these
can therefore be imposed, for that purpose, within the domain of permissible
congressional regulatory authority.
But he wishes us to infer from this that Congress may also regulate for
purposes of the common defense and general welfare, beyond the regulation of
commerce and other specific enumerations.
I simply do not get the argument. Where A (taxation) is a subset of B
(means of regulation), it may be true that A is permitted for the full
domain of B, but it does not follow that B is permitted for the full domain
of A. The "equation" between a subset and the full set does not "run both
ways." All A are B, but not all B are A. (Indeed, in this case, very few B
are A -- most regulations do not come in the form of taxes.)
Thus, in summary:
(1) Congress may tax either (a) to raise money for spending on the common
defense and general welfare; or (b) as a means of regulating commerce
(within the three categories).
(2) Congress may spend for the common defense and general welfare.
(3) Congress may regulate commerce (within the three categories), as well as
for a few other enumerated purposes.
But (4) Congress is given no power to regulate, beyond the commerce clause
and other enumerated purposes, under the authority of Clause 1.
Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112
-----Original Message-----
From: Calvin Johnson [mailto:chjohnson at MAIL.LAW.UTEXAS.EDU]
Sent: Wednesday, September 13, 2000 9:57 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Clause 1 of the powers.
I think an equation runs both ways. They are substituting as if
they were
interchangeable parts, flipping back and forth between "tax" and
"regulation" as if they have not done anything important in movign from tax
to regulation. Thus "to tax" means "to regulate" at the time.
Thus Rawlins Lowndes refers to the 1783 impost proposal ( a pure
revenue
proposal) as if it were a regulations proposals, not seeing any harm in
replacing "tax" with "regulation." Madison writes Jefferson that the
line between revenue and regulation was" found on fair discussion, to be
absolutely undefinable."
Federalist 42 (Madison) says that the federal government took the power
of regulation to forclose state taxes that were pure revenue animals.
This is at least a prima facie case that "tax" to regulation was allowed.
I think you are hoping for a distinction or a one way movement, in
what
is really an equation. But I look forward to seeing your qutoes and cites
to the effect that the move tax to regulation was prohibited.
At 06:32 PM 09/12/2000 -0600, you wrote:
>If everything you say is true, you still have only proven that when
Congress
>has been given the power to regulate within a particular domain, it can use
>taxes as a means to regulate. You have not shown the converse: that when
>Congress has been given the power to tax within a particular domain, it
also
>has the power to regulate.
>
>Michael McConnell
>University of Utah College of Law
>332 South 1400 East Rm. 101
>Salt Lake City, UT 84112
>
>
>-----Original Message-----
>From: Calvin Johnson [mailto:chjohnson at MAIL.LAW.UTEXAS.EDU]
>Sent: Tuesday, September 12, 2000 5:13 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: Clause 1 of the powers.
>
>
> (1) You are reading "and" meaning "both required" and I am
reading
>"and"
>as meaing "either" or "and/or." It is an old ambiguity alas with no
>internal resolution. You have to use cues from outside. Luckily, here we
>have some clear cues: Since they were apparently willing to tax British
>shipping to favor American shipping, it would be acceptable if the British
>shipping avoided the tax and produced no revenue. In that case there
>would be no spending. Hence spending is not required for clause 1 to be in
>effect.
> (2) I do not see how you get the claim that only some tax is
>regulation.
> My quotes talk about "regulate commerce" as meaning both to raise revenue
>and to tax to shape shape behavior. (I admit the former usage is the
>strange one to modern ears, but apparently not in 1787) " Regulate" meant
>tax for both revenue and shaping. I would htink that between revenue and
>shaping that would lick the tax batter clean. All taxes on commerce are
>regulation of commerce. Yes, the domain for both tax and regulation in my
>quotes is just commerce. But tax and regulation are coextensive within
>that domain.
>
>
> Approved-By: volokh at MAIL.LAW.UCLA.EDU
>>X-Mailer: Internet Mail Service (5.5.2650.21)
>>Date: Tue, 12 Sep 2000 16:41:34 -0600
>>Reply-To: Discussion list for con law professors
>> <CONLAWPROF at listserv.ucla.edu>
>>Sender: Discussion list for con law professors
>> <CONLAWPROF at listserv.ucla.edu>
>>From: Michael McConnell <mcconnellm at LAW.UTAH.EDU>
>>Subject: Re: Clause 1 of the powers.
>>To: CONLAWPROF at listserv.ucla.edu
>>
>>I still don't get it.
>>(1) Clause 1 does not say that Congress can tax for the common defense and
>>general welfare; it says Congress can tax (the limitations on this power
>>being found elsewhere, in Section 9) and that Congress can "provide for
the
>>common Defense and general Welfare," which means *spend.* In other words,
>it
>>is a legitimate use of the taxing power to raise funds for spending for
the
>>general welfare.
>>
>>(2) Even if I could accept the proposition that Congress can tax for the
>>general welfare (meaning for non-revenue purposes that serve the national
>>welfare), which might call into question the logic of Drexel Furniture
(but
>>not any other cases that I can think of), it would not follow that "If you
>>can tax for the common defense and general welfare, you can regulate for
>the
>>common defense and welfare." That some forms of taxation may be seen as
>>regulation does not mean that all forms of regulation are a species of
>>taxation.
>>
>>
>>Michael McConnell
>>University of Utah College of Law
>>332 South 1400 East Rm. 101
>>Salt Lake City, UT 84112
>>
>>
>>-----Original Message-----
>>From: Calvin Johnson [mailto:chjohnson at MAIL.LAW.UTEXAS.EDU]
>>Sent: Tuesday, September 12, 2000 4:19 PM
>>To: CONLAWPROF at listserv.ucla.edu
>>Subject: Re: Clause 1 of the powers.
>>
>>
>>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).
>>
>>
>> Jefferson was not that great a textualist. He was not there.
>>Anything
>>undercutting the true founding document (His) was not worth his
attention.
>> If TJ is right you can spend to get around the bill of rights, then
>>Madions is wrong about internal improvements being unC. And we need to
>>worrry a lot about protection of hte bill of rights. The new editor of
>>Jefferson papers, T. Jefferson Looney, says that Jefferson wasnt very good
>>about rights in general.
>>
>>
>>
>>
>>
>>At 03:30 PM 09/12/2000 -0600, you wrote:
>>>Michael McConnell
>>>University of Utah College of Law
>>>332 South 1400 East Rm. 101
>>>Salt Lake City, UT 84112
>>>
>>>
>>>-----Original Message-----
>>>From: Calvin Johnson [mailto:chjohnson at MAIL.LAW.UTEXAS.EDU]
>>>Sent: Tuesday, September 12, 2000 2:58 PM
>>>To: CONLAWPROF at listserv.ucla.edu
>>>Subject: Clause 1 of the powers.
>>>
>>>
>>>There are two issues here: (1) the relation between spending and
>>regulation,
>>>and (2) the relation between taxing and regulation. I am persuaded that
>>>sometimes taxes are treated as a form of regulation -- especially, if not
>>>exclusively, when they are used as means of regulating trade rather than
>>>simply as revenue raisers.
>>>
>>>But I was hoping for more information about the first issue, the relation
>>>between spending and regulation. In the post to which I was responding,
>>>Johnson stated that there was "no viable theory or argument of the time
>>that
>>>nonspending activity by government was to be limited in ways in which
>>>spending activity would not," in support of the claim that the regulatory
>>>authority of Congress is governed by clause 1 ("general welfare") rather
>>>than the Commerce Clause. The quotations just supplied do not speak to
>that
>>>issue, and I am still wondering what support Johnson has for his
argument.
>>>(My reference to newspapers was about *spending* -- not taxation.
>>Jefferson,
>>>among others, used printing contracts (spending) to encourage favorable
>>>newspapers and discourage unfavorable.)
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>Johnson now responds:
>>> 1. I am putting my collection of usages of interchangeable
usages
>>>of tax
>>>and regulate at the end, so that the whole body does not need to read
>>>through the detail. I think I have a few more but they are not in the
>>>right ledger yet.
>>> 2. Madison was undoubtedly right in thinking that there was no
>>>defensible
>>>line short of general welfare, once the tax and spend for the common
>>>defense and general welfare was allowed. He was opposed once he turned
>>>Jeffersonian to unlimted tax for unlimited purposes.
>>> 3. "General "welfare may be a synonym for "continental" welfare
>or
>>>"national" welfare or "confedearcy-level" issues, excluding "local"
>issues,
>>>but without a hard line for "internal police" of the states. There are
>>>some usages in which "enumerated power" is consistent with a jurisdiction
>>>of "general welfare" Hamilton uses "genreal welfare" to exclude
>issues
>>>of purely local concern.
>>> 4.. Are you suggesting that Jefferson could tax Federalist
>>>newspapers to
>>>extinction even though he could not regulate them? Come now Michael.
>>>Jefferson was in Paris at the time of the text of the C and never got
>>>pulled into the magnetism of Philadelphia that lead to the consensus over
>>>text. He is waivering Federalist always and also hard ball tactical in
>>>most of what he did.
>>> 5. I have a great deal of trouble using narrow interpretation of
>>>clause 1
>>>to prevent eg Federal auction of airwaves, because auction is so much
more
>>>allocatively efficient than tax and spend. It is trivial and even
>nonsense
>>>disticntion to cut off the auctions. Madison (2. above) was right.
>>>
>>>EXAMPLES OF TAX and REGULATION as synonyms to end:
>>>Congress, laboring under many difficulties, asked to regulate commerce
for
>>>21 years, when the powers reverted into the hands of those who originally
>>>gave it; but this infallible new constitution eased us of any more
>trouble,
>>>for it was to regulate commerce ad infinitum, and thus called upon us to
>>>pledge ourselves and posterity forever in support of their measures?
>>>Rawlins Lowndes, Debate in the South Carolina Legislature, January 16,
>1788
>>>in 2 The Debate on the Constitution 22 (Bernard Bailyn, ed. 1993)(the 21
>>>year grant is reference to 1783 impost proposal to give COngress the
power
>>>to lay 5% impost on imports for 21 years).
>>>
>>>Hugh Williamson, Speech at Edenton, North Carolina, November 8, 1787,
>>>printed in the Daily Advertiser (New York), February 25 - 27, 1788 in 2
>The
>>>Debate on the Constitution 231 (Bernard Bailyn, ed. 1993)(saying that by
>>>the sundry regulations of commerce, it will be in the power of Government
>>>not only to collect a vast revenue for the general benefit of the nation,
>>>but also to secure the carrying trade in the hands of citizens in
>>>preference to strangers)
>>>
>>>
>>>Federalist 84 (Hamilton) May 28, 1787 in 18 The Documentary History of
the
>>>Ratification of the Constitution 130 (John P. Kaminsky, et al, ed.
>>>1995)(arguing that national legislature will be able to acquire enough
>>>information to regulate commerce, even for internal collections of tax)
>>>
>>> The line of distinctgion between the power of regulating trade
and
>>>that of
>>>drawing revenue from it, which was one considered as the barrier to our
>>>liberties, was found on fair discussion, to be absolutely undefinable.
>>>James Madison to Thomas Jefferson, October 24, 1787, 10 Papers of James
>>>Madison 205, 211 (Robert Rutland, et. al. eds. 1977)
>>>
>>> In form, the retributional impost on British shipping, mentioned
a
>>>lot in
>>>the debates, was a tax issue or at least the tax was the mechanism by
>>>which British commerce was to be regulated, so that the issue might well
>be
>>>categorized as just another revenue issue. supra chapter 7
>>>
>>> Mr. Ghorum (July 23, 1787) Federal Convention Farrand The
>>present
>>>advantage which N. York seems to be so much attached to, of taxing her
>>>neighbours by the regulation of her trade, makes it very probable, that
>she
>>>will prevent the unanimous concurrence of the States.
>>>
>>> Federalist 42 (Madison) 15 Docu. History, 427, 430 (saying that
>>>object of
>>>power of the regulating foreign commerce was the "relief of the States
>>>which import and export through other States from the improper
>>>contributions levied on them by the latter");:
>>>
>>> Federalist 7:(Hamilton), November 17, 1787 (saying that some
>states
>>>- e.g.
>>>New York -- have the opportunity of rendering others - Connecticut and
New
>>>Jersey -- tributary to them by commercial regulations by laying duties on
>>>her importations).
>>>
>>>
>>> Federalist 40, (Madison) 15 Docu 403, at 406: Was it not an
>>>acknowledge
>>>object of the Convention, and the universal expectation of the people,
>that
>>>the regulation of trade should be submitted to the general government in
>>>such a form as would render it an immediate source of general revenue?
>>>
>>>
>>>
>>>
>>>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
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