Thomas, J., dissenting
Act To Establish a Bank (Feb. 23, 1791), in 8 Papers of Alexander Hamilton 97 (H. Syrett ed. 1965). He discussed the General Welfare Clause only as a limitation: “It is true, that [Congress] cannot without breach of trust, lay taxes for any other purpose than the general welfare.” Id., at 129. In his view, the spending power was emphatically limited to “the application of money.” Ibid. (emphasis in original). Jefferson and Hamilton could agree that it was no independent font of legislative power.
In sum, the Framers and Ratifiers understood the Taxing and General Welfare Clause as granting only a power to tax. What our modern cases refer to as the “Spending Clause”—in fact, the General Welfare Clause—was understood by the Framers and the ratifying public as granting no regulatory authority. One thing that the opposing men and factions of the founding generation agreed upon was that the Federal Government’s power to spend was just that—a power to spend, involving no regulatory authority. Instead, the power to bind with the force of law must come from Congress’ enumerated legislative powers rather than its spending power.
C
Though the scope and source of the spending power continued to be vigorously contested into the 19th century, the fundamental understanding that federal spending measures could not bind with the force of law remained common ground. For example, in his last official act, President Madison vetoed an internal improvements bill in part because the “train of powers incident” to constructing and maintaining such improvements were beyond Congress’ enumerated powers. 30 Annals of Cong. 211, 212 (1817). The General Welfare Clause could not provide the needed regulatory authority, as such an interpretation “would have the effect of giving to Congress a general power of legislation,” thus rendering the Constitution’s “special and careful
