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The Sympathetic StateDisaster Relief and the Origins of the American Welfare State
By MICHELE LANDIS DAUBER
The University of Chicago PressCopyright © 2013 The University of Chicago
All right reserved.
Chapter OneBuilding the Sympathetic State
From the perspective of lawyers and politicians in the 1930s, the history of federal disaster relief was important primarily as a list of precedents for the idea that the federal government had a broad authority to spend in the "general welfare." It also stood for the proposition that what welfare was "general" was a political question for Congress, and not the courts, to decide. Proponents of the New Deal had little need to tell the fuller story of disaster relief. But a brief review of that history will demonstrate how disaster relief came to occupy the role of key authorizing precedent for New Deal social welfare programs. As this chapter and the next show, the history of disaster relief has been driven by two intertwined logics: appeals to precedent that governed settled practices of federal aid, and efforts to expand the scope of that precedent to cover funding for new eventualities.
Requests for government relief of loss began in the earliest days of the American republic. At first, requests came from individual citizens who lacked sufficient resources to pay their debts or taxes. Congress handled these requests through the system of private bills introduced for the relief of the petitioner, who would prepare a request in the form of a memorial or petition. The earliest private bills for economic distress requested the refund of taxes and duties paid on imported merchandise destroyed or damaged prior to sale. Between 1789 and 1801, there were sixteen such refunds. In the few cases where relief was denied, it was primarily because the committee concluded that the petitioner was responsible for his situation, either by his actions or because he ostensibly assumed the risk of a foreseeable loss.
These early tax remissions quickly gave way to direct federal relief, indemnifications of property loss and damage, and food distribution. Generally, appropriations during this period for those who suffered the loss of property or class status were uncontroversial, popular, and supported by both Federalists and Republicans. Fear of setting a precedent that might prove, in the words of Republican Representative John Rhea, a lawyer from Green County, Tennessee, "destructive to the resources of the nation" resulted in the denial of some early requests. Rhea and the Committee on Claims recommended against compensation for a New York woman for kidnapping and torture by Indians. Rhea warned that despite the committee's sympathy, allowing the claim would establish a "principle" that would "make the Government responsible" for many similar cases. Nevertheless, the vast majority of claimants who successfully portrayed themselves as the blameless victims of sudden catastrophe obtained federal funds. As with claims for tax relief, the committee thought those denied direct relief generally were responsible for their own hardship in some way.
Between 1789 and 1825, there was a dramatic shift in patterns of congressional appropriations for relief. While the system of private bills continued through the nineteenth century, it was increasingly eclipsed by general relief bills that appropriated a large amount of money for the benefit of all persons fitting the eligibility criteria set forth in the bill—for example, all the citizens of Alexandria suffering loss in the fire. This new species of request for the benefit of a class of persons first appeared in 1794. Committees reported bills for the relief of entire communities or certain segments of communities—for example, all citizens who lost property during the Revolutionary War, or the 1796 remission of distillery duties for those who suffered by the "destruction of fruit" in a drought. In this new form of relief, Congress delegated broad administrative authority to commissioners, appointed by Congress and the president, who were charged with investigating applicants and distributing aid.
For example, when in 1816 Congress granted charitable relief for losses caused by the War of 1812, it built into the statute a fully elaborated bureaucratic mechanism for the distribution of funds. The statute directed President Madison to appoint, with the advice and consent of the Senate, a commissioner for a two-year term at an annual salary of $2,000. It granted the office of the relief commissioner a franking privilege, specified the oath of office, and directed him to appoint a clerk. More importantly, the statute directed the relief commissioner to promulgate rules, regulations, and procedures to govern applications, evidence, authentication, and distribution of funds, and to publish those regulations for eight weeks in every newspaper in the country.
The relief commissioner Madison appointed, Richard Bland Lee, was attacked in Congress for being too liberal in his eligibility determinations, chiefly for approving over half a million dollars in relief for residents of the Niagara frontier. The matter was hotly disputed and a subject of great controversy in Congress and the press. Some members of Congress criticized not only Lee but also the decision to delegate benefit discretion to the executive branch. Although Congress exercised greater oversight, it did not rescind the decision to put determinations in the hands of an independent commissioner. Over a century before the New Deal ushered in the "administrative state," and seventy years before the institution of Civil War pensions, Congress had established a fledgling federal administrative body with authority over national relief distribution.
Although there were some early conflicts over the constitutionality of relief, most notably following the Alexandria fire, the permissibility of federal relief for acts of "Providence" was only rarely and half-heartedly revisited by Congress after 1827. By the mid-nineteenth century, Congress had passed approximately fifty separate relief bills for such events as grasshopper plagues, Mississippi river floods, and the Civil and Indian Wars. These grants were so uncontroversial that they usually were made by unanimous joint resolution. At that point members of Congress turned their attention from whether they could provide relief to whether they should. Over the course of the next century, the Alexandria fire, the Whiskey Rebellion, the St. Domingo revolution, the Caracas earthquake, and hundreds of other grants served as precedents invoked in contested claims for relief.
Even at this early stage, disaster relief served as a precedent in debates over other federal spending programs. The most well known such dispute was over the constitutionality of federal spending on internal improvements such as roads. Madison vetoed Congress's appropriation of funds to construct the Cumberland Road as he left office, a decision that his successor, Monroe, affirmed. Madison argued that the federal government lacked the ability to construct roads, since internal improvements were not an enumerated power under the Constitution. Congress reacted with fury to these decisions and appointed a committee, led by Representative Henry St. George Tucker of Virginia, to investigate the constitutional issues and report back.
On December 15, 1817, the committee did so. Tucker, a Republican, had been chief judge of the Virginia Court of Appeals. He rejected the notion that Congress lacked the authority to spend on internal improvements. Tucker located its authority in the General Welfare Clause of the Constitution, writing in the committee report that "there is, perhaps, no part of the constitution more unlimited than that which relates to the application of the revenues which are to be raised under its authority." Tucker's report recounted a long list of federal expenditures, including the "liberal donations to the wretched sufferers of Venezuela" following the Caracas earthquake. When Tucker sent his report to Madison, the former president reportedly accused Tucker, along with many other Jeffersonians, of departing from the "ancient doctrine" of strict constructionism.
In 1822 Monroe vetoed another Cumberland Road appropriation, but he reversed himself on the interpretation of the General Welfare Clause and the question of Congress's right to pay for road construction. "My idea," Monroe wrote, was now that "Congress has an unlimited power to raise money and that in its appropriation they have a discretionary power, restricted only by the duty to appropriate it to purposes of common defense and of general, not local, national not state benefit." Monroe himself now cited the relief of the Caracas earthquake as precedent for federal spending beyond the enumerated powers. In addition, the controversy over the Lee Commission and the claims of the Niagara frontier residents had been brewing throughout his entire presidency. It could not have escaped Monroe's attention that Congress had appropriated several hundred thousand dollars for "charitable" relief for the victims of the War of 1812 without uttering a word about the Constitution.
This series of events led Joseph Story to include a defense of the broad interpretation of the congressional power over appropriations in his 1833 Commentaries on the Constitution. Like Judge Tucker in the Committee Report on Internal Improvements, Story relied upon the history of disaster relief, including relief for the Caracas earthquake and the St. Domingo refugees, as an example of a necessary function of government that could no longer be fulfilled if the narrow interpretation were to prevail. Story would come to have a recurring role in disaster relief debates in Congress, and relief proponents would quote his view countless times over the next century as an authoritative interpretation of the General Welfare Clause.
Beginning in 1794 with the Whiskey Rebellion, every major congressional disaster relief debate showed a Congress both constrained and compelled by the force of its past and its future. It is not surprising that most members of early Congresses addressing relief stated that they felt bound by precedent. Early American legislatures often acted in a quasi-judicial capacity out of confusion surrounding the appropriate legislative role. Although Congress theoretically had unlimited power to alter the common law, it was unsure of its ability to do more than merely articulate a more fundamental natural law. As William Nelson noted in his study of legal change in Massachusetts during this same period, adherence to precedent was a nearly inviolate rule. Christine Desan has observed that New York's colonial assembly engaged in "legislative adjudication," acting like a court "with jurisdiction over cases concerning the public fisc." Desan argues that contemporary understandings of a separation of powers between the legislative and judicial branches are inconsistent with patterns of institutional practice in 1789, and that "popular support for a legislative role balancing claims of private right and the uses of public revenue remained high after the Ratification." With respect to disaster relief, it appears that a similar pattern of legislative adjudication continued unabated not just into the ratification but well beyond the point that a more contemporary understanding of the separation of powers was established.
The perception of Congress as both legislature and court was so prevalent among the public that many relief petitions were often drafted in the form of legal briefs, complete with tables of prior relief cases, statutes, and evidentiary records. Congressional opponents of relief for the Alexandria fire remarked on this incongruity between the theory and method of legislation. Virginia Whig Representative William Archer argued:
Precedents operated in judicial tribunals because the object of this judication was to obtain uniformity of decision. In a legislative jurisdiction, they had no binding operation, because the purpose was not so much to fix as to vary decision, till it is supposed to have attained correctness, and even to conform to the perpetual fluctuations of opinion. Precedents, then, were nothing as regarded their authority.
Nevertheless, concern that all persons receive equal treatment dispensed according to equitable principles pervaded virtually every discussion of relief. Between 1789 and 1836, Congress or congressional committees denied nineteen claims for relief for fear of establishing a precedent. In an additional four cases, it was argued that relief should be denied because granting funds would be unfair to other analogous claimants who had previously been denied. Conversely, lists of precedents were also invoked to demand relief for eight petitions that were arguably similar to those previously approved.
Often opposing sides of the same claim cited precedents. Massachusetts Federalist Benjamin Goodhue complained about a request for relief due to a fire in 1794:
A fire happened lately in Boston, which destroyed perhaps ten or twenty thousand pounds worth of commodities that had paid duties. What kind of business would it be if all these persons were to come forward and make a demand of compensation.... Claims of this kind would never have any end.
But Virginian Josiah Parker, also a Federalist, recalled the fact that the House had granted over $10,000 in precisely this sort of relief six months prior, and argued that the claimants "should have the same justice with other petitioners to that House." It was ultimately agreed that the petition would be "treated as others of that nature had been."
Fear of setting a precedent was the primary reason for the denial of aid to Savannah, Georgia, following a devastating fire in November 1796. Opponents of the measure argued that approving relief to Savannah would set a precedent that would require Congress to grant relief for any other community experiencing a fire. Federalist Representative William Cooper of New York stated that if Congress "saw the losses that had been sustained at New York, Charleston &c. it would appear only reasonable that, if relief was afforded in one case, it ought to be extended to another." His fellow Federalist from neighboring Connecticut, Joshua Coit, said that he did not object "on constitutional grounds ... [but because] to agree with the resolution would be laying a dangerous precedent."
Most strikingly, long lists of precedents were often marshaled to support requests for relief; the first statements made on the floor of the House in favor of relieving the Savannah fire recited a list of precedents. William Laughton Smith asserted to the House that these cases controlled the decision, leaving Congress no room to refuse. According to the South Carolina Federalist, "the precedents which had been adduced appeared to be no more strongly warranted than this, ... Another case that occurred to him ... the recompense allowed to persons who suffered in the Western insurrection. Was that authorized by the Constitution any more than the present?"
Similar lists of precedents were cited several times during the 1836 debate over relief for white settlers following the Seminole War. While some, such as the Jacksonian Amos Lane of Indiana, asserted that it would be "cruel" under the circumstances to "pause for precedents in legislation or to consult the letter of the constitution," others such as the anti-Jacksonian Joseph White, the Florida territorial delegate, cited the Caracas earthquake, an earthquake at New Madrid, Missouri, in 1812, and other "repeated acts of this Government in charity for the visitations of Providence." Lee's massive outlays for the War of 1812 were cited with particular force by Representative James Harper of Pennsylvania, another anti-Jacksonian: "If a precedent was wanted, if would be found in a vote given yesterday, to pay a man for a barn which was burnt in Virginia, by the enemy, twenty years ago; and could the House hesitate to vote for the relief of these women and children?"
By the time of the Alexandria fire in 1827, it was clear that many members of Congress, across a broad spectrum of political parties and regions, felt bound by earlier grants. The experience of forty years of relief measures, including the huge sums for the victims of the War of 1812, led advocates of the Alexandria relief bill, such as William Brent of Louisiana (a supporter of the nationalistic policies of John Quincy Adams), to charge that Congress was bound by its earlier actions to grant relief on grounds of equity. 35 Opponents, such as House Speaker Andrew Stevenson, continued to question whether Congress should be bound by precedent like a court.
As relief appropriations continued to proliferate throughout the nineteenth century, debate about the controlling nature of precedent diminished. For example, during debate over relief for an 1836 fire in New York, long lists of precedents for fire relief were read into the record several times. As Representative Bellamy Storer of Ohio, an anti-Jacksonian, contended, "the principle has been settled by repeated legislative acts." Opponents focused on distinguishing the New York fire from those Storer listed and analogizing it instead to cases where relief had been denied. But few contended that Congress was not in some respects bound by precedent.
Excerpted from The Sympathetic State by MICHELE LANDIS DAUBER Copyright © 2013 by The University of Chicago. Excerpted by permission of The University of Chicago Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of ContentsList of Figures and Tables
Dedication: A Human Contrivance
INTRODUCTION / Disaster Relief and the Welfare State
ONE / Building the Sympathetic State TWO / Innovations THREE / The Spreading Delta FOUR / Crafting the Depression FIVE / The Bomb-Proof Power SIX / The Well-Beaten Path SEVEN / We Lost Our All
POSTSCRIPT / Living in a Sympathetic State