The Unconstitutional Nature of Federal Welfare: Franklin Pierce’s Finest Hour

Who was Franklin Pierce? If you know anything about  the fourteenth president you have probably been told or read that he was a failure. He frequently shows up in the bottom three of worst presidents in American history, right down there with Andrew Johnson and James Buchanan. And while Pierce is by no means a president without faults, I refuse to accept that he is as bad as he has been portrayed (yes he was a supporter of slavery and what really were the options for Kansas and Nebraska?). But the point of this post is not to defend Pierce. What we 21st century lovers of big government centralization and broad executive action see as a vice of presidents was a virtue not so long ago, namely a modest constitutional presidency. This is what Pierce always claimed he strove for. If historians ranked presidents on the overall constitutionality of their actions and deeds, the presidential rankings would look quite different. Instead, the famous C-Span poll asked historians to rank presidents based not on their fidelity to the Constitution but on “vision” and their pursuit of “justice for all,” qualifications or attributes I’m pretty sure are not listed in the Constitution but are more than appropriate for a superhero. But one doesn’t have to look too far back in American history to see where those two pursuits have caused great mischief, while simultaneously expanding the chief executive’s power and function and transforming the role of the president as chief magistrate into, well a superhero.

The only reason I mention the above is to set the context for what I consider Pierce’s finest moment–vetoing a bill for “indigent insane persons.” Yes, despite his opening of trade to Japan or the Gadsden purchase, his veto message of that single bill stands as a model, not only for how presidents should approach their duties but also the correct understanding of the nature of the federal union.  The bill was put forth by none other than the great humanitarian, Dorothea Dix and if a president would have vetoed a bill like this today he would be impeached as a cold-hearted monster. How can one say no to a “Mother Teresa?”

So what’s in the message? There are basically two main sections: the true nature of the federal union and the unconstitutionality of federal welfare.

TRUE NATURE OF THE FEDERAL UNION

Are we not too prone to forget that the Federal Union is the creature of the States, not they of the Federal Union? We were the inhabitants of colonies distinct in local government from one another before the Revolution. By the Revolution the colonies each became an independent State. They achieved that independence and secured its recognition by the agency of a consulting body, which, from being an assembly of the ministers of distinct sovereignties instructed to agree to no form of government which did not leave the domestic concerns of each State to itself, was appropriately denominated a Congress. When, having tried the experiment of the Confederation, they resolved to change that for the present Federal Union, and thus to confer on the Federal Government more ample authority, they scrupulously measured such of the functions of their cherished sovereignty as they chose to delegate to the General Government. With the aim and to this end the fathers of the Republic framed the Constitution, in and by which the independent and sovereign States united themselves for certain specified objects and purposes, and for those only, leaving all powers not therein set forth as conferred on one or another of the great departments — the legislative, the executive, and the judicial — indubitably within the States. And when the people of the several States had in their State conventions, and thus alone, given effect and force to the Constitution, not content that any doubt should in the future arise as to the scope and character of this act, they ingrafted thereon the explicit declaration that “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.”

Can it be controverted that the great mass of the business of Government — that involved in the social relations, the internal arrangements of the body politic, the mental and moral culture of men, the development of resources of wealth, the punishment of crimes in general, the preservation of order, the relief of the needy or otherwise unfortunate members of society — did in practice remain with the States; that none of these objects of local concern are by the Constitution expressly or impliedly prohibited to the States, and that none of them are by any express language of the Constitution transferred to the United States? Can it be claimed that any of these functions of local administration and legislation are vested in the Federal Government by any implication? I have never found anything in the Constitution which is susceptible of such a construction. No one of the enumerated powers touches the subject or has even a remote analogy to it. The powers conferred upon the United States have reference to federal relations, or to the means of accomplishing or executing things of federal relation. So also of the same character are the powers taken away from the States by enumeration. In either case the powers granted and the powers restricted were so granted or so restricted only where it was requisite for the maintenance of peace and harmony between the States or for the purpose of protecting their common interests and defending their common sovereignty against aggression from abroad or insurrection at home.

And as if Pierce was looking into the future when the representatives of the people would abuse the general welfare clause of Article 1, section 8 he states:

I shall not discuss at length the question of power sometimes claimed for the General Government under the clause of the eighth section of the Constitution, which gives Congress the power to “lay and collect taxes, duties, imposts, and excises, to pay debts and provide for the common defense and general welfare of the United States,” because if it has not already been settled upon sound reason and authority it never will be. I take the received and just construction of that article, as if written to lay and collect taxes, duties, imposes, and excises in order to pay the debts and in order to provide for the common defense and general welfare. It is not a substantive general power to provide for the welfare of the United States, but is a limitation on the grant of power to raise money by taxes, duties, and imposts. If it were otherwise, all the rest of the Constitution, consisting of carefully enumerated and cautiously guarded grants of specific powers, would have been useless, if not delusive. It would be impossible in that view to escape from the conclusion that these were inserted only to mislead for the present, and, instead of enlightening and defining the pathway of the future, to involve its action in the mazes of doubtful construction.

Such a conclusion the character of the men who framed that sacred instrument will never permit us to form. Indeed, to suppose it susceptible of any other construction would be to consign all the rights of the States and of the people of the States to the mere discretion of Congress, and thus to clothe the Federal Government with authority to control the sovereign States, by which they would have been dwarfed into provinces or departments and all sovereignty vested in an absolute consolidated central power, against which the spirit of liberty has so often and in so many countries struggled in vain.

ON THE UNCONSTITUTIONALITY OF FEDERAL WELFARE

The bill entitled “An act making a grant of public lands to the several States for the benefit of indigent insane persons,” which was presented to me on the 27th ultimo, has been maturely considered, and is returned to the Senate, the House in which it originated, with a statement of the objections which have required me to withhold from it my approval. In the performance of this duty, prescribed by the Constitution, I have been compelled to resist the deep sympathies of my own heart in favor of the humane purpose sought to be accomplished and to overcome the reluctance with which I dissent from the conclusions of the two Houses of Congress…

[This bill] presents at the threshold the question whether any such act on the part of the Federal Government is warranted and sanctioned by the Constitution, the provisions and principles of which are to be protected and sustained as a first and paramount duty.

It cannot be questioned that if Congress has the power to make provision for the indigent insane without the limits of this District it has the same power to provide for the indigent who are not insane, and thus to transfer to the Federal Government the charge of all the poor in all the States. It has the same power to provide hospitals and other local establishments for the care and cure of every species of human infirmity, and thus to assume all that duty of either public philanthropy or public necessity to the dependent, the orphan, the sick, or the needy which is now discharged by the States themselves or by corporate institutions or private endowments existing under the legislation of the States. The whole field of public beneficence is thrown open to the care and culture of the Federal Government. Generous impulses no longer encounter the limitations and control of our imperious fundamental law; for however worthy may be the present object in itself, it is only one of a class. It is not exclusively worthy of benevolent regard. Whatever considerations dictate sympathy for this particular object apply in like manner, if not in the same degree, to idiocy, to physical disease, to extreme destitution. If Congress may and ought to provide for any one of these objects, it may and ought to provide for them all. And if it be done in this case, what answer shall be given when Congress shall be called upon, as it doubtless will be, to pursue a similar course of legislation in the others? It will obviously be vain to reply that the object is worthy, but that the application has taken a wrong direction. The power will have been deliberately assumed, the general obligation will by this act have been acknowledged, and the question of means and expediency will alone be left for consideration. The decision upon the principle in any one case determines it for the whole class. The question presented, therefore, clearly is upon the constitutionality and propriety of the Federal Government assuming to enter into novel and vast field of legislation, namely, that of providing for the care and support of all those among the people of the United States who by any form become fit objects of public philanthropy.

I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body of mind; but I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States. To do so would, in my judgement, be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded. And if it were admissible to contemplate the exercise of this power for any object whatever, I can not avoid the belief that it would in the end be prejudicial rather than beneficial to the noble offices of charity to have the charge of them transferred from the States to the Federal Government.

I can not but repeat what I have before expressed, that if the several States, many of which have already laid the foundation of munificent establishments of local beneficence, and nearly all of which are proceeding to establish them, shall be led to suppose, as, should this bill become a law, they will be, that Congress is to make provision for such objects, the fountains of charity will be dried up at home, and the several States, instead of bestowing their own means on the social wants of their own people, may themselves, through the strong temptation which appeals to the states as to individuals, become humble suppliants for the bounty of the Federal Government, reversing their true relations to this Union.

Anyone interested in decentralization and the Jeffersonian view should read the whole message. And as if Pierce’s veto message didn’t contain enough insight into our current welfare policy he adds a chilling warning to future generations who would go down the path of big government welfare.

If the time shall ever arrive when, for an object appealing, however strongly, to our sympathies, the dignity of the States shall bow to the dictation of Congress by conforming legislation thereto, when the power and majesty and honor of those who created shall become subordinate to the thing of creation, I but feebly utter my apprehensions when I express my firm conviction that we shall see “the beginning of the end.”

We ignore the words of our “third worst president” at our peril.

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