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Originally Posted by dblack
I actually wrote this last, but decide to put it first. It might cut to the chase a bit: I guess one thing I'd like to know is whether you recognize the point of the enumeration of the powers, the notion of limited government. Because I suspect that's the source of the confusion. If you don't see the listed powers as an exclusive list, and rather as a starting that can be expanded for anything that "generally welfary", then THAT's the issue we're actually discussing.
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I do recognize the idea of limited government and enumeration of powers. I don't believe that the government can do anything it pleases, as long as it can claim to be serving the common defense or general welfare. To use an extreme example, it cannot decide that the common defense is served by putting all immigrants from the Middle East in concentration camps. (Yeah, it did that to Japanese-Americans once. That was, in my opinion, unconstitutional as all hell.)
The phrase "provide for the common defense and general welfare of the United States" is not a separate power, but a limitation on the power to spend money. The federal government can spend money on anything serving the common defense or general welfare of the United States (except where explicitly prohibited as I described in my last post). But it cannot take any other actions on that justification, except as authorized elsewhere in the Constitution.
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Why not? You keep saying this, but other powers obviously imply spending. We don't need to make up a new one for the limitations to make sense.
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I think you're missing the point completely. Interestingly, just after this you say something I completely disagree with, which I'll get to in a moment. My point, though, is that the limitation "provide for the common defense and general welfare" applies to SOMETHING. And it makes absolutely NO sense to apply it to the power to tax. It does, however, make perfect sense to apply it to the power to spend.
Now, let's look at what you said that I think is wrong:
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They're saying: "They can tax to support the functions of government, as long as they're providing for the defense or general welfare of the nation. In other words, even though they can tax us to raise an army, they can't tax us to fight a war that isn't actually defending us.
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Here is where I think you are completely wrong, and where again the power to tax/spend being a separate power is important. So is the power to raise an army, or to declare war. There is no restriction of "for the common defense and general welfare of the United States" on either of those powers. Congress is entitled to raise an army, period (for no more than two years at a time). And it's authorized to declare war, period. There's nothing in the document to restrict it only to
defensive war. (Maybe there should be, in light of recent history, but there isn't.)
Let's suppose that an insurgent movement arose in the state of Oklahoma and started committing widespread acts of terrorism, and grew into a general widespread armed revolt. The president nationalizes the Oklahoma National Guard, and maybe stiffens it with some regular Army forces, and moves to fight the rebels. Is this done for the "common defense of the United States"? Not really, at this stage. It's to defend the State of Oklahoma. The States of, Say, California, or New York, or certainly Alaska or Hawaii, aren't threatened at all. Is this, then, an unconstitutional use of the military? Few would agree that it is.
What I'm saying here is that all those other enumerated powers don't have to be used solely "for the common defense and general welfare." In some cases that restriction wouldn't even make sense. Sometimes they have their own built-in restrictions, other times not; although of course there's always the Bill of Rights. But the "common defense and general welfare" language applies only to the power to tax -- and so to the power to spend.
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Or they can tax us to run the post office, or regulate commerce, as long as it provides for the general welfare.
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Again, the ability to establish post offices and post roads, or to regulate commerce, is not restricted by the "common defense or general welfare" clause. These are separate enumerated powers. They are sufficiently narrow in themselves that clearly the framers didn't think they needed any further narrowing.
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Where we disagree is that you're saying the power to tax implies a separate power to spend. And that that must be the case because the power to tax would make no sense without the power to spend.
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No, not quite. I'm saying that the power to tax
to provide for the common defense and general welfare makes no sense unless it implies the power to spend. And as noted above, those restrictions don't apply to the other enumerated powers. You could not, for example, say that Congress must stop granting patents on the grounds that intellectual property doesn't serve the common good. Some people, of course, DO argue that intellectual property doesn't serve the common good. I'm not saying one way or another about that. In fact, let's assume,
arguendo, that they're right. Does that mean the power to issue patents is unconstitutional? No. That power is granted to Congress explicitly, and the only string attached to it is that it is "to promote the progress of science and useful arts" -- NOT to provide for the general welfare. That restriction applies ONLY to the power to tax and spend, not to any other enumerated powers.
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I don't understand where you're going with this. Obviously there's more to governing than spending money. So what?
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The point is that the power to spend money on anything promoting the general welfare is NOT equivalent to the power to govern in all respects to promote the general welfare. This is not a "do anything you want" power. It's purely a spend-money power.
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The leap I don't get, is how you end up with the notion that the power to spend, regardless of whether it's implied by the power to tax, or the other enumerated powers, is exempt from the limitations placed on government powers through enumeration.
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It's not. It's ONE of the enumerated powers. The rest of the section details the OTHER enumerated powers. Everything Congress is authorized to do, is enumerated in Article I, Section 8. If it ain't in there, Congress can't do it.
But that article, and those powers, start with the words "The Congress shall have the power," not with the words "To borrow money."