Alison LaCroix, "The Lost History of the Spending Power"

The Supreme Court’s decision in the healthcare case has brought new prominence to Congress’s power to tax and spend for the general welfare under Article I, section 8, clause 1. Legislation under the spending power is often regarded as an artifact of the New Deal period. But the spending power has a longer history dating from the early nineteenth century. Between 1815 and 1850, a second generation of American founders grappled with the meaning of the Constitution, struggling to resolve a new and diverse array of questions. Chief among them was the scope of Congress’s power – specifically, its authority to oversee public works projects such as canals, roads, and railroads. Controversy over these “internal improvements” was a key issue in several elections, and presidents from James Madison to James K. Polk clashed with Congress, the states, and the Supreme Court over differing views of federal power in this area. The crucial issue was not so much the modern question, “What can Congress compel the states to do?,” but a distinctly early national question: “What can Congress do in the name of the states?” In answering this question, early-nineteenth-century Americans looked to factors such as state consent and distinguished among the appropriation of funds, the actual construction of internal improvements, and subsequent jurisdiction over those projects – factors that modern Supreme Court case law suggests are largely irrelevant to settling federalism disputes. The text of Article I and the Tenth Amendment have not changed since the founding, but this talk will explore the ways in which the universe of constitutional possibility in which they operate has shifted over the past two centuries. Alison LaCroix is Professor of Law at the University of Chicago Law School. This talk was recorded as part of the "Chicago's Best Ideas" series on October 24, 2012.