> 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, NASA Ames Research Center > History Office. > > > _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.
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