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Overturn South Dakota v. Dole

The current majority on the Court needs only to bring its originalist methodology to bear on the Spending Clause.

(An Mazhor/Shutterstock)

Overturning Roe seemed like a pipe dream until it finally happened. Now that the worst modern legal precedent is gone, we asked TAC contributors: Which bad decision should the Supreme Court overturn next?

For the first time in my lifetime, we have a majority of Justices on the Supreme Court who consider themselves, quite properly, bound by the original public meaning of the Constitution. They have reinvigorated separation of powers, restored the principle of federalism, returned religious freedom to its equal status among the rights protected by the Bill of Rights, and generally repudiated three quarters of a century of judge-made “law” and “living constitutionalism.” Hopefully their work has only just begun, to borrow from a famous Carpenters song.


One big one, little noticed in the commentaries over the Court’s recent term, is the Spending Clause, more properly described as the General Welfare Clause. Properly understood, it goes hand in hand with the Commerce Clause, bestowing on the federal government important but limited powers. The Commerce Clause, for example, allows the federal government to regulate commerce among the states, but not to regulate the economy more generally. Similarly, the General Welfare Clause allows the federal government to collect taxes for two specific purposes: “to pay the debts” of the United States, and to “provide for the common defense and general Welfare of the United States.” The italicized words are significant, as the power given to Congress to spend taxpayer money was deliberately limited to things that benefited the nation as a whole—the common defense; the general welfare—not any particular state or region.

With those limitations, the power to spend has the same constraints (albeit on the flip side of the coin) as the power to tax, the imposition of which had to be “uniform through the United States” for imposts, exposts, and excise taxes, and apportioned according to population for direct taxes. In other words, the burden of taxes had to be shared across the country, and the benefits provided by the tax revenue likewise had to be shared by being devoted only to “common” or “general” purposes.

James Madison and Alexander Hamilton disagreed about the scope of the spending power, but even Hamilton, who took a much broader view than Madison, thought that it was limited to matters of national interest. Madison thought it was further constrained by the remainder of the enumerated powers contained elsewhere in Article I, Section 8. The Election of 1800 was fought, in significant part, over whether Hamilton’s more expansive view, or Madison’s more constrained view, was to control.  Madison’s view prevailed and remained the controlling understanding for nearly a century and a half.

Then came the New Deal of the 1930s and ultimately the Supreme Court’s sanctioning of a virtually unlimited view of the spending power. In the 1936 case United States v. Butler, the Court sided with the broader Hamiltonian position. Although the Court actually held that the particular tax and regulatory program at issue in the case was unconstitutional, it laid down a marker that whatever limits there were to the spending power would be a decision for the Congress to make. This view was reaffirmed in the 1987 decision South Dakota v. Dole, in which the Court gave virtually unfettered discretion to Congress to determine what was in furtherance of the general welfare, focusing on the word “welfare” and overlooking entirely that only the “general,” which is to say “national,” welfare was within the clause’s original purview.

As Justice O’Connor noted in her dissent in that case:

If the spending power is to be limited only by Congress’s notion of the general welfare, the reality … is that the Spending Clause gives ‘power to the Congress … to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.’ This, of course, … was not the Framers’ plan and it is not the meaning of the Spending Clause.

Many of the leading statesmen in our nation’s history understood the dangers that would flow were the central government to be given unlimited power to tax and spend. Presidents James Madison and James Monroe both vetoed internal improvements bills on the grounds that they exceed the limits of the General Welfare Clause. President Andrew Jackson described such measures as furthering a “dangerous doctrine.” President James Polk noted that if a system of local expenditures by the national government were “to be indulged in, combinations of individual and local interests will be found strong enough to control legislation, absorb the revenues of the country, and plunge the government into a hopeless indebtedness.”

Thirty trillion dollars of debt later, I think it is fair to say that Polk and his predecessors were right. South Dakota v. Dole and the erroneous reasoning in Butler on which it was based need to be overruled, and the current majority on the Court needs only to bring its originalist methodology to bear on the Spending Clause in order to do it.