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
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."Those who felt the way that Hamilton originally did were in the very distinct minority.
The Nature of the Intellectual Property Clause: A Study in Historical Perspective, by Edward C. Walterscheid
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):
- General Welfare Clause: Without Limited Federal Powers, the Constitution Would Never Have Been Ratified
- How the Next American Generation Destroyed the General Welfare Clause