Thomas, J., dissenting
“involve[d] much more than spending money: it involve[d] acquiring rights of way and constructing and operating the improvements.” Engdahl, 44 Duke L. Rev., at 23. Thus, it was precisely the “insufficiency of the spending power to override state law obstacles to achieving the targeted end that made Hamilton conclude that a constitutional amendment for canals was necessary.” Id., at 24. “[F]ederal funding alone” could not “override” “incompatible or adverse state policies.” Ibid. As this example demonstrates, even those who held the broadest conception of the spending power recognized that it was only a power to spend, not a power to impose binding requirements with the force of federal law. See Sky 95.
The limited nature of the spending power was also a rare point of agreement in Hamilton and Jefferson’s bitter quarrel over the constitutionality of a national bank. Reflecting the ratification era understanding of the General Welfare Clause, Jefferson observed that “the laying of taxes is the power and the general welfare the purpose for which the power is to be exercised.” Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), in 19 Papers of Thomas Jefferson 277 (J. Boyd ed. 1974) (emphasis in original). If the General Welfare Clause went beyond “describing the purpose of the” Taxing Clause and represented “a distinct and independent power to do any act [Congress may] please, which might be for the good of the Union,” it “would render all the preceding and subsequent enumerations of power completely useless.” Ibid.; accord, J. Madison, The Bank Bill (Feb. 2, 1791), in 13 Papers of James Madison 375 (C. Hobson & R. Rutland eds. 1981) (interpreting the General Welfare Clause as a distinct power “would supersede all the powers reserved to the state governments”). In response, Hamilton justified the bank based on Congress’ enumerated powers, such as the Commerce and Taxing Clauses. Opinion on the Constitutionality of an
