Monday, October 26, 2009

General Welfare Clause: The Constitution's Great Limitation

If a court doesn't clearly understand what a law means, the judges always go back to the intentions of those who wrote it. So they should. A law is still the law until it is properly amended. As law, meaning of the Constitution of the United States can be so understood. When we go back to discover the historical context in which the Constitution came forth, its meaning becomes much less ambiguous.

Some people refer to the Constitution as a "living" document. It's not--at least not according to the way that people who use the term "living" mean it. Worse than that, the Constitution is virtually dead, because when it is not being misinterpreted it is almost always otherwise ignored.

But it wasn't always that way.

The Constitution is what the Constitution says. If it is not clear what the Constitution says, then we must go back to what those who wrote it and those who ratified it understood it to mean. It is largely only to those who don't go back to understand the Constitution's historical context that its meaning is not clear.

The Constitution has clear rules for how it can be amended. There are two ways (one of which has never been used). Neither of them involves
  • The president issuing an executive order
  • The Supreme Court issuing a decision
  • Anyone imagining something that isn't there, no matter how benevolent it might sound
One of the most currently controversial parts of the Constitution, the meaning of which could have easily been clarified by amendment if it really were so unclear as some people think it is, is the General Welfare Clause. Article I Section 8 of the Constitution begins like this:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Did that clause give the federal government the right to lay and collect taxes for pretty much anything it wants? It might have--if Article I Section 8 stopped there. But it doesn't.

A very few participants at the Constitutional Convention in Philadephia in 1787 at one time or another thought that the General Welfare Clause gave the federal government sweeping powers to do essentially anything to which it could remotely draw a relationship to the general welfare. How silly. Any government naturally thinks it can do that. It is to limit the benevolent aspirations of governments that Consitutions are written in the first place. If the General Welfare Clause really gave government all-encompassing powers, there would have been no need to write a Constitution.

Some advocates of unlimited federal authority felt very strongly that they were right. One of them was Alexander Hamilton. But even Hamilton eventually tempered his enthusiasm for unbridled laying and collecting:
Not even Alexandar Hamilton, the early apostle of broad construction of both the general welfare clause and the necessary and proper clause, would go that far. In his discussion of the general welfare clause, he expressly noted that the power to tax and appropriate under that clause, while broad, does not permit Congress "to do anything not authorized in the Constitution, either expressly or by fair interpretation."

The Nature of the Intellectual Property Clause: A Study in Historical Perspective, by Edward C. Walterscheid
Those who felt the way that Hamilton originally did were in the very distinct minority.

Article I, Section 8 lists 17 things for which the Federal Government may lay and collect taxes. Those 17 items deal with borrowing money, regulating commerce, naturalizing new citizens, coining money, establishing bankruptcy laws, punishing counterfeiters, establishing post offices, declaring war, raising, organizing, training, and paying armies and navies for our national defense, promoting science and the arts through patents, and to govern the area now known as Washington D.C.

Does it say anything in there about health care? No. How about providing social security to the aged? Again, no. Does it allow the president to declare war? Nope. It doesn't matter how long America has been violating the Constitution--if something was a violation of the Constitution when it was written, it's still a violation--unless an Amendment saying that something is now okay has been properly ratified.

The Federal government had limited powers on purpose. James Madison made it clear that that was what was written into the Constitution.
If Congress can employ money indefinitely for the general welfare, and are the sole and supreme judges of the general welfare...they may assume the provision of the poor. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of LIMITED GOVERNMENT established by the people of America.
As you may have noticed, there has been a lot of assuming, subverting, and transmuting going on around here. And it is not pretty.

Madison also said
For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity...
Because American elites have ignored the clear meaning of the Constitution, the means to which government has been put to use in order to augment power upon power unto itself has become the epitome of absurdity.

. . . . . .

In upcoming articles, I will discuss how the preponderant majority of Americans understood the federal government to be severely limited by the General Welfare Clause, as well as how, unfortunately, it did not take very long for the federal government to violate the clear meaning of the clause.

Related Articles (coming soon):


  1. I'm glad that the game has changed and now "the constitution and the founders said so" has become "a majority of the founders said so". The mask is off now. The meaning of the constitution cannot be limited to a math equation. It's being inspired means that it is more than the sum of it's parts, particularly if some of those parts are being used as a wedge to render the other half of the population as less American, essentially treasonous, and thereby stifle debate.

  2. It doesn't matter which way the wedge goes, I suppose, if you want to look at it as a wedge. A significant portion of the population will be seen as less American. I, for one, don't see someone such as yourself as any less American for disagreeing with me. I do hope, though, through debate and clarification, to get you to come around to my point. However, if that doesn't happen, I'll be fine, and we can still be fellow Americans, and--I hope--friends.

    I suppose the perspective that "the founders said" has been rendered fairly moot, because most Americans don't know enough about what they said to even give a crap. What I'm trying to show is that it has to matter what they said. From a spiritual (I'm entitled to it, so gimme, gimme, gimme) and from an economic perspective (deficits and debts do matter) we are headed straight for "hell" in a very speedy "hand basket". That's the inspiration that I see from the Founders--that they preponderantly realized that the federal government cannot do it all, because some things are much more efficiently done at the state and local levels, and, therefore the enumeration in the general welfare clause.

  3. Certainly we will remain friends, if I have anything to say about it. Having said that it is a lot more fun to be friends with someone who agrees with me on the rules of the debate rather than says I'm breaking all the rules of that debate. Within the scope set forth by the constitution it is perfectly valid to argue that things are done better on a smaller scale AND to argue that government can and must have the power (and yes even "grow") to protect our liberties from the powers that would take them from us. Debate is how good decisions are made, when the people debating are wise enough to know when to compromise for the greater good, as the founders were. Once one side or the other attempts to re-brand the debate rule book itself as supporting only their side, the well is poisoned, civility wears thin and our peace and union are threatened. This is at least part of why the constitution hangs by a thread.

  4. I'll take, based on recent prior conversations, that your reference to the "civility wears thin" is aimed at Glenn Beck.

    I agree with you that compromise for the greater good is best. But the way I see the greater good is the way most of the Founders saw it--that the federal government's powers were very limited. It's not hard to see, by skyrocketing social welfare costs and debts so burgeoning that they are incomprehensible, that the greater good is NOT for the Federal Government to solve every problem. In most cases, local governments can solve the problems much more effectively and much less costly than governments further distanced from the problem.

  5. I refer to Glenn, Hannity, Limbaugh, etc. and more importantly their uncivil disciples who are regular people because our peace ultimately rests with average people. I do believe the government's powers are very limited, but just not to all but one of the enumerated powers in the constitution. The greatest crime of our government is that it has been bought and sold by special interests that have by now successfully socially engineered our society which thing violates the general welfare clause of the constitution. The Glenn Becks out there are the PR wing of this continuing effort and they succeed by promoting the false dichotomy of commerce=good, government=bad so we will be blind to what they do together and continue to worship America's wealth creation abilities and the idea that, as Chomsky puts it, that "somehow private vices yield public benefits".

  6. "the false dichotomy of commerce=good, government=bad" is a generalization that requires a generalized answer. Glenn Beck does not promote this. If you don't listen to him very often, you should. If you haven't read his book "Common Sense" you should. You'd see that his main point (and for that matter, my main point--we're both Cleon Skousen disciples, you know ;-) )is that it's about liberty, not about "the one with the most toys wins". Big commerce has gotten a bad name for the most part because they have gotten a license from government (a license, mind you, that they would not have if we encforced strict construction of the General Welfare Clause) to stomp on the little guy. That is NOT adherence to free market principles. That is the result of BAD regulation.

  7. That's just one example of how Glenn says certain things that are true and at the end of the day demonstrates and comes down on the side of the opposite view. The common denominator is extreme emotion. In other words, while he may say at times "The government is in bed with big business", he still glorifies most vehemently, the fruit of that arrangement, which puts him squarely on the side of big business (which, not coincidentally, sign his paycchecks). In other words, by jingoisitically trumpeting America as the greatest engine of wealth creation the world has ever seen, he is trumpeting the corruption that made our multinationals what they are. If he was truly out for the little guy his concept of America would be vastly different and not nearly as triumphal. The nature of the "little guy" is that he works hard for his family and probably distrusts the industrialists and their chess games and could care less about engines of wealth creation. In fact that kind of phony patriotism is a result of propaganda (like the Middleton Family at the New York Worlds Fair video I sent you). If Glenn actually thought about it and realized all that "the government is in bed with big business" means, he could no longer in good conscience participate in an agenda that simultaneously and overwhelmingly promotes the idea that the two are at odds. At that point he would have to align his content with the truth which is that regulation is necessary to keep the market free, consumerism - including sports and the whole media (including him) - are intended to dumb down, distract and divide so that the collusion can continue and our liberties continue to be whittled away. Of course at that point he'd be out of a job.

  8. What's your reference for your claim that Hamilton once thought the federal government had unlimited powers? The things I've read indicate he understood that the limitations are included in the phrase "general welfare".

  9. I'm not sure what I meant by that. I can only suppose I misread the quote by Edward Walterscheid. Interestingly, it seems that I might have had it exactly backwards. If, as many people think, Hamilton did write the Federalist essay #83, then his about face was from one of strict construction to one of broad interpretation of the General Welfare. In the Federalist 83, it says

    "A specification of particulars is an exclusion of generals... The plan of the convention declares that the power of Congress, or, in other words, the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.

  10. Your supposition that the Article 1, Section 8 makes a list of 17 areas where the Congress can lay and collect taxes is wrong. It would be correct if item 1 had a colon at the end thereby defining all items following as being linked to it.
    It does not, it uses a semi-colon which means it is a separate thought and ends there. To truly understand what is meant in this section, use the phrase "The Congress Shall have the Power," before the "To" in each of the 17 items.
    That is the Power Congress has, and it does possess the power to pass whatever revenue raising sources and laws that provide for the General Welfare of the populace which it serves.


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