The National Constitution Center has recently established an Interactive
Constitution website. For almost every significant part of the Constitution, the
project has paired essays by two different experts: one nominated by The
Federalist Society and one by its liberal counterpart, the American
Constitution Society. The experts produce a joint essay outlining their areas of
agreement, and separate essays discussing the issues on which they differ.
In the case of the Spending Clause, the two experts were Sam Bagenstos of the
University of Michigan and myself. The Clause gives Congress the power to
“lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and
provide for the common Defence and the general Welfare of the United
States.”
Our essays are available here. While Sam and I agree on many aspects of the
history of the Spending Clause, there is deep disagreement on how courts
should interpret it today. The differences involve both methodology and
substantive conclusions. My contribution argues for tightening judicial
enforcement of limits on the spending power, primarily on the basis of text
and original meaning (though I note some policy benefits of this approach, as
well). Sam arguesthat there should be very few if any such constraints, largely
on pragmatic/living constitution grounds.
It is perhaps worth noting that there was greater agreement between the
Federalist Society and ACS experts on some of the other parts of the
Constitution included in the Interactive Constitution.
I would like to thank the NCC for organizing this website, and Sam Bagenstos
for his insightful contribution. The project is a valuable resources for both
experts and interested laypeople. It was an honor to participate.