Sunday, November 01, 2009

General Welfare Clause: Without Limited Federal Powers, the Constitution Would Likely Never Have Been Ratified

It is absurd to imagine that the former colonists, who abhored British attempts to continually centralize governmental power over them, would in turn create a federal government that possessed the same abusive powers. Yet this is exactly what some opponents to the Constitution of the United States were fearful of. It was only after careful assurances that the government's powers were limited and that a Bill of Rights would be the first item of business for the new Congress that several of the largest states ratified the Constitution.

Virginia, Massachusetts, and New York, some of the largest states in America at the time of the state constitutional ratifying conventions, came rather close to not ratifying the Constitution. They wanted assurances that the General Welfare Clause, as written, did not mean that the new federal government could raise moneys through taxation for essentially anything that the government happened at the time to deem as being for the general welfare.

These states were among those which asked for a Bill of Rights, which would ensure, among other things, that the states would still be able to perform the duties that were not expressly granted to the federal government by the Constitution.

In his book Age of Strict Construction: A History of the Growth of Federal Power, author Peter Zavodnyik wrote
The idea that the [general welfare] clause bestowed so broad an authority would have come as a shock to most delegates. They had just spent six weeks debating the enumerated powers of Congress...

...the convention [had already] considered and rejected a broad spending power on August 25... Federalists responded to concerns over the general welfare clause and the rest of the Constitution with the assurance that Congress could exercise only those powers granted to it.

Age of Strict Construction, pages 20-21
The idea that the federal government should be limited by the enumerated list of duties in the General Welfare Clause, although fearfully unclear to many who opposed it, was the intention of the bulk of the founders. For example, James Wilson, in what became known as the Stateyard Speech, spoken on October 6, 1787, said
it is evident, that in the former case [state legislatures] everything which is not reserved is given, but in the latter [Congress] the reverse of the proposition prevails, and every thing which is not given is reserved."
Others of the Founders felt the same way. Delegates Rufus King and Nathaniel Gorham championed the idea of limited federal powers. Roger Sherman asserted that the federal government's powers were "particularly defined," and that, therefore, each state kept to itself the "right to exercise every power of a sovereign state not delegated to the United States."

Their fears still not completely assuaged, the states of New York, Massachusetts, and Virginia (among others) proposed various amendments to the Constitution, many of which were later included in the Bill of Rights. Once they were confident that their concerns would be aired on the national stage, their conventions ratified the Constitution as it stood.

Although the Bill of Rights was ratified nearly two years after--and added to--the Constitution, work on incorporating such amendments into the Constitution followed close on the heels of the Constitution's ratification. The fledgling government knew full well that without various amendments, the danger of a second constitutional convention was immediate, which would cause the government to fail. George Washington, writing to Charles Carter, feared that
...there is no Alternative between the Adoption of it and Anarchy. General government is now suspended by a thread.
The first such amendment proposed by the state of Virgnia said:
That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.
In essay #39 of the Federalist Papers, which went very far toward the convincing of the New York state convention to ratify the Constitution, James Madison wrote:

the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
Phrasing similar to this, and even more similar to the Virginia amendment discussed above, made it into the Bill of Rights. The 10th Amendment to the Constitution makes it even more clear that the States retain far more rights to govern than those ceded to the federal government
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Some claim that George Washington supported a much less limited understanding of the Constitution's general welfare clause. Washington, in his last public appearance as president spoke of the importance of fostering agriculture.

It will not be doubted, that with reference either to individual, or National Welfare, Agriculture is of primary importance. Institutions for promoting it, grow up, supported by the public purse: and to what object can it be dedicated with greater propriety? Among the means which have been employed to this end, none have been attended with greater success than the establishment of Boards, composed of proper characters, charged with collecting and diffusing information, and enabled by premiums, and small pecuniary aids, to encourage and assist a spirit of discovery and improvement.
It is far from clear, however, whether Washington was advocating direct spending by the federal government on behalf of farmers. More likely, it appears that Washington was praising what local "Boards" had already aided farmers with "premiums, and small pecuniary aids". In fact, Alexander Hamilton, who was Washington's Treasury Secretary at that time, had previously written in Federalist Papers essay #17 that
The administration of private justice between the citizens of the same state, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.
Various presidents of the United States have vetoed legislation that violated the common understanding that the federal government's powers were severely limited vis a vis the states. When a piece of legislation crossed his desk proposing that the federal government provide for the indigent, President Grover Cleveland said
I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit.
Thomas Jefferson believed that

Congress had not the unlimited powers to provide for the general welfare, but were restrained by those specifically enumerated; was never meant that they should provide for that welfare but by the exercise of the enumerated powers.
In 1921, President Warren G. Harding warned
Just government is merely the guarantee to the people of the right and opportunity to support themselves. The one outstanding danger of today is the tendency to turn to Washington for the things which are the tasks or the duties of the forty-eight [now fifty] commonwealths.
At a time when the federal government had become increasingly comfortable taking on functions that were not within its constitutional purview, LDS Church President David O. McKay wrote that
No government owes you a living. You get it yourself by your own acts--never by trespassing upon the rights of your neighbor, never by cheating him. You put a blemish on your character the moment you do.
Some advocates of a "living" Constitution are clear that they understand that the federal government has gone far beyond the powers that it was originally understood to have. Peter Zavodnyik writes:
The Constitution was a product of the classical theory of republican government which embraced a minimalist, even negative approach to public power. ...Such a system might have been appropriate for the eighteenth century... And so it is with the federal government--the demands made upon it over the last two centuries have grown, and it has responded accordingly. In the process, it has assumed powers that were not granted to it by either the Constitutional Convention or subsequent amendments. ...only by exceeding its designated sphere has the government been able to maintain a large middle class and the political stability that comes with it.
I agree, but I disagree. The federal government has gone far beyond what the original thinkers said was its charter. How this can be a good thing, though, I can't comprehend.

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  1. I've responded to this before

    MA was not given assurance of anything.

    Instead they traded ratification for the opportunity to give recommendations as to how they would like the document modified.

    2. Your argument that Hamilton's view was unconstitutional because he was outnumbered is weak. Particularly since his view held sway through the first two presidencies. Your arguments are exploding/dropping like clay pigeons Frank: The constitution doesn't allow it - gone. The founders interpretations don't allow it - gone. The original interpretation of the founders doesn't allow it - gone. All your left with is ranking the founders according to how close they are to your belief, and now you have to toss out Washington AND Hamilton to try to make it stick. It doesn't stick Frank.
    The previous paragraph in that Washington speech includes this sentence: "Institutions for promoting it grow up, supported by the public purse; and to what object could it be dedicated with greater propriety?" Public purse = money from the government ( Also, if he wasn't talking about tax money there would be no need to mention propriety.

  2. I agree with you; it would not have been ratified. I don't think it would have made it out of the convention. The spending clause is a huge hole, huh?
    Thanks for your comment. I am glad to see that you will be voting for the reasons you stated in your comment to my blog. Spread the word!

  3. I think it's safe to say that the Constitution would not have been ratified if it was assumed that it gave the federal government power to do anything it wanted to.

  4. Even Hamilton knew that the general welfare clause didn't allow the government to do anything. That proposition is a ploy to make opposing views seem ridiculous. The general welfare clause limited the government to measures that were for the "welfare" of the population "in general" as opposed to special interests and limited groups. C'mon Frank.

  5. Joseph,

    I assume by "anything" you really mean "everything". I've stated, and I think Cameron would agree, that by "everything" we mean "everything deemed to be for the general welfare".

    In my latest article "...Did Hamilton Waffle?" I suggest that he was in favor of taxing and funding in a broad way, but that he was not in favor of legislating in the same general manner.

  6. I hadn't seen or heard any indication from you that the term "general welfare" was itself a limitation. In other words it seemed to be interpreted as "if it seems generally nice, do it". I guess I was mistaken.


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