Talk:Taxing and Spending Clause

The following discussion is an archived discussion of the . Please do not modify it. Subsequent comments should be made in a new section on the talk page. No further edits should be made to this section.

The result was no consensus. Vassyana (talk) 08:10, 17 February 2008 (UTC)

Taxing and Spending Clause → General Welfare Clause — The article has been moved back-and-forth four times now, with both regular and cut-and-paste moves. "General Welfare Clause" is by far the more common name per Google hits, as well as the source cited in the first paragraph of this article. —MilesAgain (talk) 14:29, 23 January 2008 (UTC)

[edit] Survey

Feel free to state your position on the renaming proposal by beginning a new line in this section with *'''Support''' or *'''Oppose''', then sign your comment with ~~~~. Since polling is not a substitute for discussion, please explain your reasons, taking into account Wikipedia's naming conventions.

[edit] Support

• Strong support for move, as requester, and per discussion below. MilesAgain (talk) 14:29, 23 January 2008 (UTC)
• Extremely strong support as per my comments below. Corvus cornix_talk 17:53, 23 January 2008 (UTC)
• Strong support What it's usually called. This is the first time I've heard this phrase, including several constitutional histories of the United States. Septentrionalis PMAnderson 18:49, 25 January 2008 (UTC)

  Please note also that there are two separate places in the Constitution which refer to "the general welfare" (the other being in the Preamble). bd2412 T 20:36, 25 January 2008 (UTC)

[edit] Oppose

• Strong oppose. bd2412 T I base this on three considerations:

1. First, a "general welfare clause" is a common provision of any Constitution (or even a city charter, and in some cases of an individual statute) that provides for the general welfare of the people thereunder. See, e.g.:
   • "Home rule charter cities simply include a general welfare clause or "all powers clause" within the provisions of their charters."[2]
   • "Alabama adopted a new Confederate Constitution, which "affirmed that the states were 'sovereign and independent' and omitted a general welfare clause. "[3]
   • "Minneapolis is a home-rule-charter city with a general welfare clause, and as such has some power to enact traffic regulations..."[4]
   • "The fact that the legislature has the ability to do pretty much anything it wants under the State's general welfare clause, as Representative Valihura told me, just doesn't make it right for them to walk in and stomp on the property rights of restaurant, casino, hotel, and bar owners."[5]
   • "Under the provisions of municipal charters which are known as the general welfare clauses, a city, by virtue of its police power, may adopt ordinances to the peace, safety, health, morals and the best and highest interests of the municipality."[6]
   • "Under its general welfare clause a municipality may regulate the sale of milk". William Wheeler, The Law of Pure Food and Drugs, National and State (1912) p.135.
   • "There was also a general welfare clause allowing the parties to present evidence on '[a]ny other factors which reasonably relate to the public health, safety and welfare.' Id. (quoting Milwaukee Code of Ordinances § 90-5-8(c-1))." Daley v. Gorajec, 2007 U.S. Dist. LEXIS 57842 (S.D. Ind. 2007).
   • "Section 34 [of the Ohio Constitution] grants the General Assembly authority to pass laws 'providing for the comfort, health, safety, and general welfare of all employees...' Lima argues that the general welfare clause grants the General Assembly authority to pass laws addressing 'employment issues directly related to the working environment.' The general welfare clause states laws may be passed 'providing for the comfort, health, safety, and general welfare of employees.'" City of Lima v. State, 2007 Ohio 6419, P26 (Ohio Ct. App. 2007).
   • § 5(S) of the Maryland Constitution is "a 'general welfare' clause that had been broadly construed to permit charter counties to legislate beyond the powers expressly enumerated in the Express Powers Act". Tyma v. Montgomery County, 369 Md. 497, 511 (Md. 2002).
   • "Although police powers are not without limitation, Pennsylvania courts have recognized that municipalities have the power to enact legislation aimed at protecting the health, safety, and welfare of citizens under the general welfare clauses contained in municipal codes". Taylor v. Harmony Township Board of Commissioners, 851 A.2d 1020, 1024-1025 (Pa. Commw. Ct. 2004)).

   Thus, if we move to that title, eventually we'd have to disambiguate it. General welfare clauses are ubiquitous - a Lexis search of cases decided in the past ten years turned up 18 hits for "general welfare clause", at least half of which referred to state or city provisions. For the same period, there are 46 hits for "taxing and spending clause", all of which refer to Art. I, § 8, of the United States Constitution.

2. Second, the "general welfare" provision is only part of the "Taxing and Spending Clause". Having the article at this title would be sort of like having "Bill of Rights" at "First Amendment".
3. Third, there is no "general welfare" power. General welfare is one of the purposes towards which Congress can use its power of taxing and spending.

• In response to your concern #1, I have re-tabulated the hit count below to include only those articles which also include "United States Constitution" or as with "U.S." or "US". I have also tabulated the uses by the U.S. government itself. As you can see, the ratios are still heavily weighted in favor of "General Welfare Clause." In response you your concern #2, you have not explained why sources such as this or this refer to the entire clause as the GWC and do not even list the TSC as a synonym. Your concern #3 doesn't seem to have a lot to do with this article, which is not about a power. Would there need to be an "establishment power" for there to be an Establishment Clause? MilesAgain (talk) 17:20, 23 January 2008 (UTC)

• The point of the copious sources cited in the first instance is not merely that some hits may refer to a different "general welfare clause", but that a "general welfare clause" is a generic concept, whereas there is only one "Taxing and Spending Clause". Also, the Establishment clause grants no powers whatsoever - there is therefore nothing more logical to call it. The Taxing and Spending Clause grants the power to tax, and the power to spend; that is its chief purpose. bd2412 T 17:55, 23 January 2008 (UTC)

• Extremely strong oppose. Foofighter20x (talk) 03:20, 24 January 2008 (UTC)

1. You guys shouldn't fall into the trap of the using Google as the basis of your argument: "If all you have is a hammer, everything looks like a nail." BD2412 using Lexis Nexis is further proof that reliance upon Google as the almighty Golden Hammer of naming conventions is really just half-assed, lazy thinking.
2. Read the whole article. The TSC is the "what"; as such, its article is about taxation, the power of Congress to tax, and all the other clauses that affect the operation of that power. The GWC is more of a "why" (to pay and provide) and "how" (commonly and generally; i.e. non-specifically) in terms of using the power; it does not grant any power in and of itself; i.e. it is a qualification on the taxing power, not the power itself.
3. Maybe the reason the phrase General Welfare Clause shows up more on Google is because all the mentions of it are in the context of how government spends money (the "how"). No one doubts the federal government's power to tax (the "what"), so talking about the Taxing and Spending Clause is academic and not really controversal, and thus is less likely to generate hits.
4. Also, as BD and I have both said, the GWC is a compentent part of the TSC. Moving this back to GWC would be like refering to a mousetrap as a spring-coiled-wire. There are more parts to it that just that...
5. BD2412 put it best: General Welfare is a generic concept and could potentially require disambiguation. In fact it seems that an article about the GWC should talk about how it is used for ambiguous applications of law and appropriations and is essentially used as a legislative "catch-all." However, I highly doubt that such a article could anywhere include by any form of tortured logic how the phrase "to pay the Debts and provide for the commmon Defence and general Welfare of the United States" is in any way a grant of power to tax. Like I said just above this: the article is about taxation.
6. As I've written above and below, nothing is stopping anyone here from writing an article about the General Welfare Clause specifically. I've even offered a third way out of this argument: have the general welfare clause article be about what it's used for: things like internal improvements, social programs, and pork-barrel spending by Congress, and as generic catch-alls by state and local governments. Summarize the GWC portion of the article and it's affect on tax law, and provide one of those handy little Main Article links at the top of the GWC section.

• Oppose - Based on BD2412 comments, I oppose the move. It appears to me that the broad term of "general welfare clause" may be better served by a disambig page or perhaps a redirect with this article having an otheruses tag. We also should look at this in a Global way. If we have so many uses of of the term, it is likely that other countries use it as well. The common use would also explain some of the counts in Google. Morphh ^(talk) 21:15, 25 January 2008 (UTC)

[edit] Discussion

Any additional comments:

The article's own source [1] for its name ("Constitutional Clauses & Their Nicknames") is from the Washington University Law Library, and it doesn't even mention "Taxing and Spending Clause".

The Wikipedia:Naming conventions policy states, "Generally, article naming should prefer what the greatest number of English speakers would most easily recognize," and there are no specific conventions that apply in this case. MilesAgain (talk) 14:42, 23 January 2008 (UTC)

Yeah... GENERALLY - a: in disregard of specific instances and with regard to an overall picture... Guess what that means! It doesn't apply in ALL cases!! :p Foofighter20x (talk) 02:20, 25 January 2008 (UTC)

Note that the exceptions are listed below in WP:NC. As I said, none of them apply. MilesAgain (talk) 06:19, 26 January 2008 (UTC)

Duly noted. But it still doesn't help your argument any: TSC and GWC aren't the same thing. As BD2412 explained before, what you advocate is like naming a page The First Amendment and then having it be about the entirety of the U.S. Bill or Rights. Foofighter20x (talk) 13:35, 26 January 2008 (UTC)

The terminology "taxing and spending" clause is a conservative stalking horse. It's completely POV and not a neutral phrasing whatsoever. Corvus cornix_talk 17:54, 23 January 2008 (UTC)

The clause states "The Congress shall have Power To lay and collect Taxes" - is the Clause POV? bd2412 T 18:22, 23 January 2008 (UTC)

1. It a conserva-who-whatcha-ma-horse??! *gasp* Let's look.
   • Answers.com calls it the Taxing and Spending Clause at the top of it's own article... You can even ignore the Wikipedia mirror below it.
   • So does the CRS Annonated Constitution at Cornell Law School (Scroll down to Taxpayer Suits... It's in the second paragraph of that section)
   • And it's called that by the courts in case law...
   • ...after case...
   • ...after case... (Hein v. Freedom From Religion Foundation, Inc.)
   • ...after case... (Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.)
   • ...after case... (Higganbotham v. State of Oklahoma)
   • ...after case. (Bowen v. Kendrick: refered to in this last one as the taxing and spending power.)
2. As I said above, the GWC is not the whole clause, but only this portion: "to pay the Debts and provide for the common Defence and general Welfare of the United States"; just as the Uniformity Clause is only: "but all Duties, Imposts and Excises shall be uniform throughout the United States;". The Taxing and Spending Clause is the entirety of all the clauses contained therein.
3. No one has countered the suggestion above that the GWC be made its own article (though it'd only be of stub length) and summarize what's in this article with a link to it.
4. Seems someone has revealed their own POV bias. Good job, Corvus! *thumbs up* Foofighter20x (talk) 02:42, 24 January 2008 (UTC)

Uh less heat, more light please. You can say the same thing without being provocative. I'll just stay a general observer and point out that there hasn't really been any solid evidence presented in favor of moving and a lot of solid evidence has been presented against it. Google is only an extremely poor indicator of where an article might be, and should be ignored in the face of better evidence. The naming conventions do say "in cases where the common name of a subject is misleading, then it is sometimes reasonable to fall back on a well-accepted alternative." That seems to apply here. - Taxman ^Talk 15:25, 25 January 2008 (UTC)

For the law and history buffs: John Marshall Law Review, Vol. 33, 1999 : What Spending Clause? (Or the President's Paramour): An Examination of the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause 1 of the United States Constitution Just the abstract supports the assertion I've made that the GWC is only the following phrase: "to pay the Debts and provide for the common Defence and general Welfare of the United States"; Foofighter20x (talk) 20:51, 25 January 2008 (UTC)

So far: 3 votes to 2 (with an additional lawyer and one of the leaders of the WikiTaxation Project--Taxman--strongly leaning toward opposing the move). A tie so far, really, with all the facts and reasoning skewed heavily in favor of those opposing. As for their last vote for moving the article, the voter cites many volumes without naming them. I wonder if that kind of reasoning would stand up in court. Show us the evidence, please (aside from Google, which has already been discredited). Foofighter20x (talk) 20:39, 25 January 2008 (UTC)

Wikipedia is not a courtroom. We shouldn't Wikilawyer. Septentrionalis PMAnderson 21:21, 25 January 2008 (UTC)

Agreed. And, after all, the article will contain the same information no matter what the title is (and thanks to the magic of redirects, people looking for either title will be led to the right place). bd2412 T 21:35, 25 January 2008 (UTC)

Seems the both of you misunderstand me. Yes, Wikipedia has rules. However, Wikipedia's own policy is that they are simply guides and not meant to be rigidly enforced. My contention immediately above is that, of those voting, if anyone mentions any references, they should provide them for all concerned parties here to review. Merely referring off-handedly to "several constitutional histories" honestly doesn't cut it. Just like articles require citation for verification, so do claims in discussion; while it's not a rule, I hardly think it's asking too much. With the anonymity of both the internet and Wikipedia, I'm not going to just take your word for it. Sorry. Show me the data. If you aren't going to do that, then concede the point. Foofighter20x (talk) 23:46, 25 January 2008 (UTC)

Also, I resent the fact that the first thing people are doing here is being dimissive of my points by claiming I am Wikilawyering, and then offering nothing to counter my assertions. Seriously, that's like playing the race card. I don't get it. It makes the whole discussion political and personal when the goal should be improvement of the site. So, I'll reiterate two of the points I made above:

1. The article is about Congress' power to tax and spend in general, with inputs from other parts of the Constitution and a synoptic history of the provisions (where there is an actual story to tell). This is an accurate reflection of the article name and people's understanding of what an article about the TSC would entail.
2. GWC is relegated more to the spending side of the equation--(edit: as evidenced here)--and has little to do with the actual taxation part of it. The longer this fricker-frass goes on, the more clear it becomes that this needs to be two seperate articles, each with a different focus. Foofighter20x (talk) 00:15, 26 January 2008 (UTC)

Here is another consideration:

In Ferrocarril Central Argentino c/Provincia de Santa Fe, 569 the Argentine Court held that the General Welfare clause of the Argentine Constitution offered the federal government a general source of authority for legislation affecting the provinces. The Court recognized that the United States utilized the clause only as a source of authority for federal taxation and spending, not for general legislation...

—Jonathan M. Miller, The Authority of a Foreign Talisman: A Study of U.S. Constitutional Practice as Authority in Nineteenth Century Argentina and the Argentine Elite's Leap of Faith, 46 Am. U.L. Rev. 1483, 1562 (1997).

As that article points out, where a clause containing "general welfare" language appears in the constitutions of other countries (and even of U.S. states), it is usually read to grant the nation an inherent power to regulate. However, the U.S. clause does not act in this manner. The only thing the clause does is to give Congress the power to tax and spend. bd2412 T 07:35, 26 January 2008 (UTC)

I just found another cite in support of what I've been saying.

• ARTICLE: The General Welfare Clause and the Public Trust: An Essay in Original Understanding; 52 Kansas Law Review 1 (Nov 2003)

Thanks... Foofighter20x (talk) 18:16, 14 February 2008 (UTC)

• • In light of that, I've started a stub on the concept at General Welfare clause. Cheers! bd2412 T 20:32, 14 February 2008 (UTC)

The above discussion is preserved as an archive of the proposal. Please do not modify it. Subsequent comments should be made in a new section on this talk page. No further edits should be made to this section.