To Provide for the General Welfare: A History of the Federal Spending Power

Published by EH.NET (January 2005)

Theodore Sky, To Provide for the General Welfare: A History of the Federal Spending Power. Newark, DE: University of Delaware Press, 2003. 442 pp. $75 (cloth), ISBN: 0-87413-793-4.

Reviewed for EH.NET by Michael R. Adamson.

To Provide for the General Welfare traces in meticulous detail and with close reasoning executive branch interpretations of Article 1, Section 8 of the U.S. Constitution, which delegated authority to Congress “to lay and collect taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” It relies on the public papers of the presidents, especially annual messages, speeches, and veto messages, and, to a lesser extent diaries and correspondence, to show how Alexander Hamilton’s broad reading of the clause, expressed in his Report on Manufactures, prevailed over James Madison’s “strict constructionist” view, argued vigorously in Federalist No. 41, his 1817 veto of an internal improvements bill, and an 1830 letter to Andrew Stevenson, the speaker of the House. Madison held that Article I, Section 8 limited the scope of federal spending to the enumerated powers listed therein. For Hamilton, no constitutional amendment was necessary to justify federal spending beyond these powers, provided that the funds were appropriated on behalf of the general welfare of the people, rather than the particular interests of a state or section. The decisions of the presidents who believed that a constitutional amendment was required to expand the scope of the general welfare clause (namely Thomas Jefferson, Madison, and James Monroe) to put nation building above political theory and constitutional interpretation in their sanctioning of federal funding of certain public works projects ensured that Hamilton’s reading of the clause would prevail. The actions of the Democratic-Republican presidents in the first quarter of the nineteenth century paved the way for an evolutionary expansion in the scope and scale of federal spending that traces its lineage through presidents John Quincy Adams, Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, and Franklin Roosevelt. In this context, the vetoing of certain public works projects by Andrew Jackson and other Democratic presidents during the balance of the nineteenth century constitute mere pauses on the road to a more expansive and progressive American state.

In focusing on the intentions and thinking of the nation’s founders and its early presidents — Sky devotes a mere seventy pages to the presidents who followed Lincoln — To Provide for the General Welfare appropriately diminishes the role of the Supreme Court. With very little debate, the delegates to the U.S. constitutional convention self-consciously approved a general welfare clause that was sufficiently ambiguous to leave it to subsequent administrations to interpret the authority of the federal government in light of needs that they could not foresee. Sky devotes a chapter to the thinking of nineteenth-century Supreme Court Justice Joseph Story, for it was his support for a Hamiltonian reading of the general welfare clause on which the majority relied in its 1936 decision in U.S. v. Butler, when it ruled on the general welfare clause for the first time. By setting his argument within a programmatic context of executive branch policy making, however, Sky convincingly demonstrates an executive-branch-driven evolution in spending power jurisprudence that should give pause to individuals and organizations who look to the court to circumscribe the scope of the American state. The political debate about the general welfare clause was settled long before the court sanctioned the New Deal in Butler. Hotly debated during the first fifty years of the American republic, the argument over the constitutional interpretation of the clause was much diminished in Lincoln’s annual messages that justified subsidies to railroads and education during the civil war, and was all but absent from the messages of Theodore Roosevelt and Woodrow Wilson in support of their progressive programs.

For Sky, Distinguished Lecturer at the Catholic University of America School of Law, the spending programs of the eighteenth, nineteenth, and twentieth centuries are all of a piece. For instance, in the area of education, he draws a straight line from the (rejected) initiatives of John Quincy Adams for a national university through Lincoln’s approved aid to states (in the form of land grants) to the education initiatives of Lyndon Johnson’s Great Society. In establishing a close link between modern legislation, particularly in the areas of health, education, and social welfare, to initiatives of the presidents of the early republic, Sky in effect argues on behalf of a “long Progressive Era” in American history, which Mary O. Furner identified in her seminal essay, “Knowing Capitalism: Public Investigation and the Labor Question in the Long Progressive Era” (in The State and Economic Knowledge, edited by Furner and Barry Supple, 1990). Indeed, To Provide for the General Welfare provides evidence to suggest that progressivism was embedded in the American state by its founding document — and therefore well before the 1880s that Furner marked as the beginning of the era. In recent years, scholars have demonstrated that governments at the state level were activist, if not progressive, throughout the nineteenth century. With even the advocates of limited federal government ultimately conceding the practicality of federal spending in areas not enumerated in Article 1, Section 8, the reader may well conclude from Sky’s discussion that it was inevitable that the limited government of Madison and Jefferson would become in time the unbounded modern welfare state.

In identifying a “seamless” legal progression toward the modern welfare state, however, Sky conceals important factors that explain the experience of state building in America. As James Willard Hurst (Law and the Conditions of Freedom in the Nineteenth-Century United States, 1956) and Theodore Lowi (The End of Liberalism, 1979; The End of the Republican Era, 1995) have demonstrated, the “traditional” or “patronage” state of the nineteenth century differed fundamentally from the state established by the New Deal, which built on the expansion of state responsibility undertaken by Teddy Roosevelt and Woodrow Wilson. As Hurst has argued, the state of the nineteenth century sought to harness private property and individual energy on behalf of growing the economy and providing opportunity. It was limited in the sense that the laws that defined it were bounded, concrete, and specific, as Lowi puts it. Moreover, the state saw private property as instrumental in achieving national goals. After creating “the conditions of freedom” under which individuals might act, the state privileged markets in that it accepted the outcomes of proprietary or corporate activity. Indeed, Sky’s text provides indirect evidence of how the state related to the market in this manner.

State building during the twentieth century constituted significant points of departure in ideology and institutions that drove a fundamental “transformation” in the legal regime, as Morton J. Horwitz has argued in The Transformation of American Law, 1870?1960 (1992). In the context of the emergence of corporate capitalism and severe economic depression, progressivism and a “new liberalism” yielded, for all intents and purposes, an unbounded federal state, sanctioned in law, with responsibility not only for the promotion of opportunity but the redress of unjust social and economic outcomes. While no constitutional amendment has been required for a vast expansion in federal government spending beyond the enumerated powers in Article 1, Section 8, the changes that have occurred are not explained by a broad reading of the general welfare clause alone. Sky’s text provides some of the historical context that will help readers understand the ideas and political motivations behind the programmatic initiatives of modern U.S. presidents. Ultimately, Sky relates only part of the story of state responsibility for the “general welfare” (albeit an important one), but in a way that seems to be all encompassing in explaining its expansion in scope and scale. Readers may be forgiven if they come away from their reading of the text with a lack of appreciation of the extent to which the modern welfare state differs from the American state as it existed prior to the New Deal and the Great Society.

To Provide for the General Welfare will be of interest to specialists, including legal scholars, intellectual, economic and political historians, law professors, and public policy analysts. Economic historians who wish to learn more about the political economy of internal improvements during the nineteenth century will find the text to be an especially valuable source. Well-written and argued, the book nevertheless will appeal less to undergraduate students and general readers. Replete with long and block quotes, and closely argued discussions thereof, the text often reads like a law review article. (No criticism of law review articles intended.) Historians will likely be disappointed by the lack of references to the relevant secondary literature on many topics related to progressive political thought, political economy, and economic development. Most of the citations of secondary literature refer the reader to biographies of the presidents, which may prove unsatisfactory to scholars wishing to investigate the historiography or history of the aforementioned topics.

Michael R. Adamson is an independent scholar and historical consultant, based in the San Francisco Bay Area, who has served as Research Associate, NASA Ames Research Center History Office. His publications include, “The Failure of the Foreign Bondholders Protective Council Experiment, 1934-40,” Business History Review (Autumn 2002) and “‘Must We Overlook All Impairment of Our Interests'”: Debating the Foreign Aid Role of the Export-Import Bank, 1934-41″ Diplomatic History, forthcoming.