In a recent article in Commentary, Peter Wehner examines the proper role of the federal government in caring for “people who can’t take care of themselves”. Along the way, he invokes Madison:
The end of government, we’re told in Federalist #51, is justice. Justice is defined as the quality of being impartial and fair and bestowing equal treatment. But it also means caring for the defenseless, the disadvantaged, and the oppressed. This is a public as well as a private concern. A society ought to be judged on whether the weak and disadvantaged are cared for or exploited. And a just society is incompatible with one where government doesn’t care for people who can’t care for themselves.
Here Mr. Wehner begs the question by providing a self-serving definition of Justice, one clearly at odds with meaning Madison ascribes to the term. Justice is not to be conflated with fairness, as is so often seen in left-leaning screed. The Universe is inherently and unalterably unfair though many a tyrant has paved their way to power by deluding a naive public into believing this can be rectified if only the individual will surrender his sovereignty to the State. But we need not debate what Madison had in mind when he used the term Justice, he spells it out clearly in his Gazette.
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.
By equating his definition here of “the end of government” with that quoted by Mr. Wehner from Federalist 51 (“The end of government is Justice”) we see that Justice, as Madison uses the term, lies in the impartial and equitable protection of our possessions, most precious among them our constitutionally enumerated rights and those unenumerated rights vested in the sovereign will of the majority. A just government is one where the weak and the strong, the majority and the minority are all given equal power to protect their property.
Here we must be careful to understand property in the way Madison intended.
In its larger and juster meaning, [property] embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. . . . [A] man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may equally be said to have property in his rights.
Source: James Madison, “Property,” National Gazette, March 29, 1792; reprinted in The Papers of James Madison, vol. 14, 6 April 1791-16 March 1793; ed. Robert A. Rutland et al. Charlottesville: University Press of Virginia (1983).
If the proper end of a just government is protection of our possessions, the question naturally arises, protection from whom or what? Madison is clear throughout the Federalist that the paramount threat to our rights and property is the Government itself. Ironically, Federalist #51 quoted by Mr. Wehner in defense of the notion that Government is justified in its charitable endeavors, is in fact a treatise on how to best structure government to neutralize the threat such a broadly empowered government would pose!
So if Justice can not be employed as a rationale for government charity (and in fact argues against it), wherein lies the constitutional underpinnings authorizing the nearly $1 trillion the federal government spends each year on direct aid to the poor? Up until the FDR’s court packing scheme in 1937, such spending by the government was in fact unconstitutional. When threatened with dilution the Supreme Court acquiesced in the infamous “switch in time that saved nine”. Thenceforth the justification for such expenditures was found by redefining the General Welfare clause of the Constitution. This despite 150 years of precedent and ample historical evidence that shows this clause does not confer any additional power on Congress but rather provided the rationale for the specific powers enumerated (in this case, taxation and expenditure) in the dependent clause following. Thomas Jefferson puts it succinctly:
Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.
Madison warned forcefully against the modern (post 1937) interpretation in a letter to Edmund Pendleton in 1792;
If Congress can do whatever in their discretion can be done by money, [to] promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. (James Madison, Letter to Edmund Pendleton, January 21, 1792 Madison 1865, I, page 546)
and again in a letter to Jame Robertson
With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.
As usual, Madison proved himself prescient. The end he feared most has come upon us and we have indeed become a Government “no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”
Is all of this merely historical nitpicking pressed into the service of selfishness and greed? Actually quite the opposite. Conservatives rail against these usurpations precisely because they threaten the Common Good, another Madisonian concept that has as its ultimate expression the creation of a governmental regime that can be entrusted to hold and protect its Citizen’s most prized possession, their liberty and their civil rights.
I use the word regime above purposefully. Our Founders crafted an exquisite monstrosity, not unlike the archway which when properly constructed uses the law of gravity to defeat the law of gravity. Madison’s ingenious design of our system of governance conquered the inexhaustible, centripetal force of tyranny by dividing that force in three and pitting each branch against the other. Granting that Congress has a plenary power to tax and spend on anything it deems to be “in the general welfare” reduced that once mighty edifice to a house of cards. History proves that the temptation to pander, to buy the votes of constituents from the public purse, is too great a temptation to be resisted by mere mortal men. The result has been spending beyond comprehension and a society weakened by dependency and factionalism.
The Government is supposed to be pitted against itself, leaving us free to manage our affairs. Instead, the Government has turned the tables, pitting us against each other, leaving them free to manage our affairs. Though the temptation be great, Government can not be both an instrument of charity and the guarantor of our civil rights. We must choose and choose wisely.