Butler, United States v.

Butler, United States v., 297 U.S. 1 (1936), argued 9–10 Dec. 1935, decided 6 Jan. 1936, by vote of 6 to 3; Roberts for the Court, Stone, Brandeis, and Cardozo in dissent. The Agricultural Adjustment Act of 1933 represented a major New Deal effort to ameliorate the depression in agriculture and raise farm prices by limiting production. Farmers who agreed to reduce crop acreage received benefit payments, the funds coming from a tax levied on the first processor of the commodities involved. Butler, a processor, refused to pay the tax. The circuit court of appeals upheld Butler, and the government appealed.

By a vote of 6 to 3 in United States v. Butler the Supreme Court declared the tax unconstitutional. Justice Owen J. Roberts's opinion for the majority, characterized by Leonard Levy as “monumentally inept,” undertook a preliminary explanation of the Court's limited role in deciding constitutional questions. The judicial duty was simply “to lay the Article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former” (p. 62). This simplistic explanation of the process of constitutional interpretation has been generally considered unrealistic.

Roberts did, however, settle a long‐standing dispute concerning the taxing power of Congress. Article I, section 8, authorizes Congress to levy taxes “to pay the debts and provide for the common defense and general welfare of the United States. …” James Madison contended that “general welfare” purposes were limited to authorizations elsewhere in the Constitution, whereas Alexander Hamilton held that this language amounted to an independent power to tax and spend, provided only that the “general welfare” was served. Accepting Hamilton's view, Roberts determined that the processing taxes were justified under the General Welfare Clause.

Roberts's support for the spending power was irrelevant, however, for he immediately transferred the argument to an entirely new issue. Whether the spending was for national rather than local welfare was of no consequence, because the statutory plan to regulate and control agricultural production invaded the reserved powers of the states and so was invalid under the Tenth Amendment.

Justices Harlan F. Stone, Louis D. Brandeis, and Benjamin N. Cardozo dissented. In a scathing rebuttal Stone called Roberts's ruling “a tortured construction of the Constitution” (p. 87). But the most widely noted language in Stone's dissent was his warning against judicial arrogance: “Courts are not the only agency of government that must be assumed to have capacity to govern. … [T]he only check upon our own exercise of power is our own sense of self‐restraint” (p. 79). These words were widely read as a rebuke to the Court's conservatives who had been declaring New Deal statutes unconstitutional.

As a threat to other New Deal programs, the Roberts opinion was soon a dead letter. The tax provisions of the Social Security Act were upheld in Steward Machine Co. v. Davis (1937), and the agricultural program struck down in Butler was reenacted by Congress under the commerce power and upheld in Mulford v. Smith (1939) and Wickard v. Filburn (1942).

In retrospect, the principal positive contribution of the Butler majority is the principle, as restated by Chief Justice Warren E. Burger in Fullilove v. Klutznick (1980), that the power to provide for the general welfare “is an independent grant of legislative authority, distinct from other broad congressional powers” (p. 247). Otherwise, the opinion by Roberts is valueless. Justice Felix Frankfurter in International Association of Machinists v. Street (1961) spoke of “the severely criticized, indeed rather discredited case of United States v. Butler” (p. 807). The most enduring feature of the decision is Stone's dissent; his plea for judicial self‐restraint has been invoked on many subsequent occasions by Court minorities, both liberal and conservative. In Shapiro v. Thompson (1969) Justice John M. Harlan cited the Butler fiasco in warning his colleague that cases come to the Court with “an extreme heavy presumption of validity” (p. 675).

See also General Welfare; Judicial Self‐Restraint; Taxing and Spending Clause.

C. Herman Pritchett