The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 argues that 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.