RS UNEMPLOYMENT IN THE UNITED STATES
CL L. Q., 324), argues that even if the conditions did involve the ceding of re-
served State rights, still the mere legislation alone would be no unconstitutional
act because it is ineffective until acceptance by the State, and further than, even
after acceptance by the State actually involving delegation to the United States
of some reserved governmental power, there would be no violation of the Federal
Constitution. The tenth amendment, “ The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively or to the people,” is inapplicable as a test of the scope of
the delegated powers of the National Government, and can not be taken to
limit the exercise of the delegated powers; in particular, the powers of taxation
and appropriation under Article I, Section VIII. As Corwin quotes Madison:
“Interference with the powers of the States is no constitutional criterion of the
power of Congress. If the power is not given Congress may not exercise it.
If given, they may exercise it even though it shall interfere with the laws or even
the constitutions of the State.” The State’s acceptance, then, would at most
violate the State constitution and would raise no question within the jurisdiction
of the Federal courts.
But Burdick asserts that Federal-aid legislation has so far not involved dele-
gation of legislative powers precedent to securing the benefits, and the same
would be true of the bill, as it is drawn in the same form and plan as the others,
The conditions are of three classes: Mandatory and directory provisions regard-
ing the use which the States are to make of ‘the funds, which involve no sur-
render of governmental rights; requirements for reports and estimates from the
States for the purpose of controlling the administration of the acts, but only to
insure their fulfillment as accepted by the States. In these there is no limitation
on the State legislature or general administrative powers.
Federal-aid legislation has been attacked as an illegal exercise of the power
of Congress to tax and to spend money as granted in Article I, Section VIII, of
the Constitution: “Congress shall have power to lay and collect taxes, duties,
imposts, and excises to pay the debts and provide for the common defense and
general welfare of the United States; but all duties, imposts, and excise shall
be uniform throughout the United States.” Corwin (36 H. L. R. 548), and
Burdick, in the article cited above, show that the power to provide for the
general welfare contained therein is not an unlimited one to legislate for the
general welfare irrespective of other constitutional limitations but only a quali-
fication of the taxing power. But it is pointed out also that the prevailing con-
struction given to the phrase does not limit the scope of taxation and expendi-
ture for the purposes of general welfare to the other specially delegated powers
of Congress as Madison interpreted the words; but rather that the phrase has
been given its literal and comprehensive meaning, limited only by the qualifi-
cation that the expenditures be general and not local, Hamilton's interpreta-
tion. Madison's opinion appears in the Federalist, No. 41 (40). He holds that
the words are limited not only by appearing in the clause relating to taxation
but, also, by being in the same section with the enumerated powers, and he con-
strues them as a mere general phrase explained and qualified bv the recitation
of particulars which follow it.
This interpretation was first offered by Jefferson in his opinion on the con-
stitutionality of the national bank (Federalist 1898, appendix, p. 651) and was
answered by Hamilton in his counter argument (Federalist 1398, Appendix, p.
655-764) where Hamilton understands the phrase as allowing Congress to raise
money for the purpose of general welfare, the only constitutional test being
that It must be for a general and not local purpose; but “the quality of the
object as how far it will really promote, or not, welfare of the Union, must he a
matter of conscientious discretion; and the arguments for or against a measure
in this light must be arguments concerning expediency or inexpediency, not
constitutional right.”
- Story also contends against Madison's limited interpretation (Story on the
Constitution, secs. 922 to 930 in.) and the broader interpretation has been
accepted almost uninterruptedly throughout the history of the Nation, as Corwin
shows at length in his Harvard Law Review article. ~ Story also claims that in
that clause of Article I, Section VIII, is found the power fo appropriate (Story
on the Constitution, secs. 975-991 incl.)
No comprehensive judicial determination of the scope of the taxing power
under the welfare clause has been made. Examples of earlier laws passed under
the general-welfare clause are those making appropriations for agricultural re-
searches, the formation of the Department of Labor, the Fisheries Bureau, and
the Bureau of Mines. The Morrill Act of 1862 (ch. 130, 12 Stat. 503) eranted
