1. See Dauber, Michele Landis, “The Sympathetic State,” Law and History Review 23 (2005): 388.CrossRefGoogle ScholarMason, Alpheus Thomas, in Harlan Fiske Stone: Pillar of the Law (New York: Viking Press, 1956), 408Google Scholar , reports that Stone said, “The taxing power of the Federal Government, my dear, is sufficient for everything you want and need.”

2. U.S. v. Butler, 297 U.S.1 (1936).Google Scholar

3. Story, Citing Joseph, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, 1833), sections 909, 922.Google Scholar

4. See Mason, , Harlan Fiske Stone, 408.Google Scholar

5. Bailey v. Drexel Furniture Co., 259 U.S.20 (1922)Google Scholar , with Justice Clarke as the lone dissenter. Chief Justice Taft wrote: “Grant the validity of this law, and all that Congress would need to do, hereafter, in seeking to take over to its control and one of the great number of subjects of public interest, jurisdiction of which the States have never parted with, and which are reserved to them by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax upon departures from it. To give such magic to the word ‘tax' would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States.”

6. See Steward Machine Co. v. Davis, 301 U.S.548 (1937)Google Scholar and Helvering v. Davis, 301 U.S.619 (1937)Google Scholar.

7. Currie, David P., in “The Constitution in the Supreme Court: The New Deal, 1931–1940,” University of Chicago Law Review 54 (1987): 504CrossRefGoogle Scholar , at n.136, reports that “the refusal of an early Congress to provide disaster relief for a single community after debate had raised serious constitutional doubts tends to support Hamilton's insistence that ‘the object to which an appropriation of money is… made [must] be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.”

8. For more on the debates over a national university and internal improvement, see Corwin, Edward, “The Spending Power of Congress—Apropos the Maternity Act,” Harvard Law Review 36 (1922): 548–82.CrossRefGoogle Scholar Dauber claims that Corwin argued “that the Court had no power to strike down the Sheppard-Towner Maternity Act because history demonstrated that Congress had always had plenary and unreviewable power over appropriations,” but that characterization probably overstates Corwin's position. Corwin was well aware that there were long-standing arguments over whether Congress was using its powers of appropriation only to promote legitimate “national” ends and not to act in ways that challenged traditional spheres of state authority.

9. It is a bit surprising that Dauber does not cite Susan Sterett's discussion of constitutional debates over “social spending” at the turn of that century; see “Serving the State: Constitutionalism and Social Spending, 1860s–1920s,” Law and Social Inquiry 22 (1997): 311.CrossRefGoogle Scholar It is true that Sterett was looking mostly at constitutional debates governing the scope of state powers rather than federal authority, but her topic is relevant to the question of constitutional precedents for the emergent welfare state, and it would have been helpful for Dauber to explain how her discussion relates to this earlier work.

10. Dauber provides plenty of evidence to support a (predictable and unsurprising) portrait of these representatives as self-serving and grandstanding politicians rather than lawyers who took seriously the principled application of precedent. Among the quotes peppered in her account: “If you want to know where the constitutional power to do this is, and where the law is, I answer it is in that common humanity that belongs to every man”; “necessity knows neither law nor constitution”; “I cannot stop to argue literal construction of the Constitution”; “I do not know whether this bill is constitutional or not”; “humanity is greater than any constitution”; “now in the name of Heaven—not in the name of the Constitution, but in the name of that sweet rainbow-robed charity which would make us better and brighter and more generous men—let us make this appropriation”; etc. Needless to say, if members of Congress could have established these statements as legitimate precedents they would not have needed courts to broadly interpret the scope of Congress's spending powers.

11. Dauber believes it is important that, during this litigation, Solicitor General William Howard Taft advocated in favor of a broader reading of Congress's authority to spend for the General Welfare. It is undoubtedly true that many conservatives understood, along with Cooley, that the scope of the federal government's spending power was broader than the authority of states, whose spending was limited by the familiar “public purpose” feature of police powers jurisprudence. But (a) this does not establish that there was a consensus among progressive and conservative thinkers about the actual scope of Congress's authority and (b) Taft's advocacy as solicitor general provides no real evidence of his personal views on this question.

12. Fletcher v. Peck, 10 U.S. 87 (1810). The difference between that case and Realty was that Marshall was recognizing an enforceable vested legal right whereas Peckham was merely recognizing the legitimacy of paying off an essentially “moral” debt.

13. Justice Peckham wrote at one point: “We are of the opinion that the parties, situated as were the plaintiffs in these actions, acquired claims upon the government of an equitable, moral or honorary nature. Could Congress legally recognize and pay them although the act of 1890 as to its bounty provisions might be unconstitutional? It is true that in general an unconstitutional act of Congress is the same as if there were no act. That is regarding its purely legal aspect.… [These claims] were nevertheless of so meritorious and equitable a nature as to authorize the nation through its Congress to appropriate money to pay them.” U.S. v. Realty Co., 163 U.S. 427, 439 (1896).

14. Ibid., 440.

15. Allen v. Smith, 173 U.S.389, 402 (1899).Google Scholar Dauber (392, n. 15) cites Corwin's 1922 article on the spending power as evidence that this earlier case really did stand for a broad reading of the spending power (Corwin, “The Spending Power of Congress”). However, Corwin's passing reference to the case in his footnote 77 is hardly a careful analysis. Moreover, Corwin also wrote that “he would be a bold man who would assert dogmatically that legitimate occasion might never arise for judicial interposition within this field” (576). Even if we acknowledge that Corwin was advocating for a broader interpretation (see especially p. 580) it would be important to keep in mind his reputation as a propagandist (in the best sense) of progressive constitutionalism. Among other things, during the New Deal battles, Corwin was an active public spokesperson for a theory of the “living Constitution” that was central to Roosevelt's vision. See Gillman, Howard, “The Collapse of Constitutional Originalism and the Rise of the Notion of the ‘Living Constitution' in the Course of American State-Building,” Studies in American Political Development 11 (Fall 1997): 191–247CrossRefGoogle Scholar.

16. Frothingham v. Mellon, 262 U.S.447 (1923)Google Scholar , mentioned in Dauber's notes 9 and 217.

17. Even then, we should never assume that justices feel obligated to follow precedents with which they disagree; in fact, the evidence is pretty overwhelming that justices feel no such obligation, especially when an inherited precedent would require them to decide a case in a way that was inconsistent with their broader ideological commitments. See Spaeth, Harold J. and Segal, Jeffrey A., Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court (Cambridge: Cambridge University Press, 2001)Google Scholar.