If you say so

By A.J. Wagner

Rep. Roscoe Bartlett (R-Md.) suggested a few weeks ago that federally-issued student loans were unconstitutional. He also said that disregarding the Constitution could lead down a “slippery slope” and cited the Holocaust as an example of what could happen when a country heads down a wrong path.

At a town hall meeting in his district, a college instructor asked Bartlett how he felt about student loans. He replied, “I’m for student loans. I want kids to have an education.” Then he reversed course by adding that he had read the Constitution and could find no evidence that the federal government should be involved in education. He expanded, “Not that it’s not a good idea to give students loans; it certainly is a good idea to give them loans, but if you can ignore the Constitution to do something good today, tomorrow you will be ignoring the Constitution to do something bad.”

Representative Bartlett brings up an interesting point. How is it that Congress can make laws not mentioned specifically in the Constitution?

Education is just one of many subjects legislated by Congress that is not mentioned in the Constitution. Drug testing is not mentioned, nor is funding of highways. Yet, Congress persists in making laws based on the dictates of a 225-year-old document to cover problems and issues that could not have been imagined in 1787.

No law can be passed without Constitutional authority, so here’s a look at what the supreme law of the land authorizes the legislature to legislate. It starts in the Preamble that broadly outlines the purpose of the Constitution as it states:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” (Words are spelled and capitalized as they appear in the original document.)

The specific authority of Congress is set in Article I Section 8 which is aptly titled “Powers of Congress.” It says, among other listed powers:

“The Congress shall have power 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; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

In both places, it is the term “general Welfare” which has been interpreted to provide Congress with the broad powers to enter into fields of assistance and protection that can vary widely with the times. But, no sooner had the ink dried on the parchment when some said the phrase “general Welfare” was meant to have a more narrow interpretation.

In “The Federalist Papers,” James Madison claimed a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers – such as minting coins or declaring war – claiming the General Welfare Clause is not a specific grant of power but a statement of purpose qualifying the power to tax.

Alexander Hamilton countered with a broad interpretation which viewed spending as an enumerated power to be exercised by Congress for the general welfare, such as to assist commerce or education, provided that the spending is general in nature and does not favor any specific state or population over any other.

Hamilton’s view won out during the early years of the new government, but Jefferson leaned toward the Madison view.  That view took over for a period of time but it was not long before the broader view returned.

The Supreme Court has dealt with the issue on a number of occasions with varying results. For instance, in 1922 the Court took the narrow view that a tax could not be placed on child labor. Then, in 1936, the Court reversed course and said the General Welfare Clause gave Congress powers that could not be found enumerated elsewhere. The Court did say that the clause extended only to matters of national, as distinguished from local, welfare.

In 1937, the Court reviewed the clause again saying that Congress should have the discretion to impose taxes and to spend money for the general welfare without judicial interference. This basically takes the Court out of any disputes regarding “general welfare.” If Congress passes a law, they must believe it is within the realm of general welfare and that is good enough.

There remain limitations that Congress can only deal with the national interest and must have sensitivity to the Tenth Amendment, leaving unlisted powers to the states, but this means that almost anything can be considered within the realm of Congress. If they passed it, it’s constitutional. They made it so.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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