Constitution101: The General Welfare Clause

When challenged on the federal government’s constitutional authority to create welfare programs, meddle in education or run a national healthcare system, progressives will almost always appeal to the “general welfare clause.”

Huffington Post columpromote general welfare thomasnist Paul Abrams demonstrated this line of thinking in a March 9, 2011, piece.

Article 1, Section 8, Clause 1 grants the United States government the unqualified and unlimited power to raise and spend money, for example, to: provide healthcare for the elderly (or for everyone); provide old-age pension; build roads, bridges, train tracks, airports, electric grids, libraries, swimming pools, housing; educate our children, re-train the unemployed, provide pre-school and day care; fund public health projects; invest in and conduct basic research; provide subsidies for agriculture; save the auto industry; create internets (sic); and, yes, Tea Party Senator Mike Lee (R-UT), even provide emergency aid from natural disasters, and so forth. All subsumed under the authority to spend for the general welfare.”

The term “general welfare” actually appears twice in the Constitution. We find it first in the preamble and then in the opening line of Article I Sec. 8.

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;

These words create something of a dilemma. Either the founders didn’t really intend to create a general government of limited powers, or the general welfare clause doesn’t really mean unlimited federal authority to fund things beneficial to the nation as a whole.

The fact that the framers followed up the general welfare clause in Article I Sec. 8 with specific enumerated powers indicates the latter – a qualification [limitation] on federal authority. If they had intended Congress should have the power to do virtually anything and everything to promote the general welfare, they wouldn’t have bothered to include specific powers.

James Madison made this very point in a letter to James Robertson dated April, 20, 1831.

With respect to the two words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

Yes, promoting the general welfare falls among the roles of the federal government, but it must do so within the scope of the specific powers delegated to it. Pro-ratification essayist “Cassius” wrote in an article in the Virginia Independent Chronicle addressed directly to Richard Henry Lee that the general welfare clause was “not a power coextensive with every possible object of human legislation.”

A moment’s calm reflection must have informed you, that no such legislative latitude is given to the house of representatives, except in the imposition of taxes, and in that branch, it must, necessarily, be intrusted, because the line could not be drawn. Congress can make no laws, except such, as are, essentially, necessary to carry into execution the particular powers given to them by the constitution.”

During the ratification debates, anti-federalists who opposed the Constitution voiced fears that people like our columnist Abrams would come along and assert the term “general welfare” granted unlimited power to the federal government. Supporters of the Constitution swore it would not. Even Alexander Hamilton, the framer most in favor of expansive federal power, conceded as much in Federalist 83.

This specification of particulars [the 18 enumerated powers of Article I, Section 8] 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.”

Madison specifically addressed the anti-federalist fears in Federalist 41.

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, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.”

Edmund Randolph was a delegate to the Philadelphia Convention. He initially refused to sign the Constitution, but later reversed course, became a supporter. He played a prominent role in the Virginia ratifying convention. During the debates, Randolph explained that the federal government could levy taxes for the general welfare and common defense, but it could only spend those funds based on the enumerated powers that follow the general welfare clause. He asserted that any broader reading would “violate every rule of construction.”

I appeal to the candor of the honorable gentleman [Patrick Henry], and if he thinks it an improper appeal, I ask the gentlemen here, whether there be a general, indefinite power of providing for the general welfare? The power is, ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare;’ so that they can only raise money by these means, in order to provide for the general welfare. No man who reads it can say it is general, as the honorable gentleman represents it. You must violate every rule of construction and common sense, if you sever it from the power of raising money, and annex it to any thing else, in order to make it that formidable power which it is represented to be.”

Randolph addressed this same argument at another point during the debates.

But the rhetoric of the gentleman has highly colored the dangers of giving the general government an indefinite power of providing for the general welfare. I contend that no such power is given. They 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.’ Is this an independent, separate, substantive power, to provide for the general welfare of the United States? No, sir.”

In other words, the general welfare clause in Article 1 Sec. 8 empowers Congress to tax, but it doesn’t empower Congress to spend. The specific enumerated powers that follow limit the federal government’s spending power to specific objects.

Madison further illuminated the intent of the general welfare clause in a letter to Edmund Pendleton dated Jan. 21, 1792, pointing out that the phrase was lifted from the Articles of Confederation and was intended to retain its meaning in the new Constitution.

I have reserved for you a copy of the Report of the Secretary of the Treasury on Manufactures for which I hoped to have found before this a private conveyance, it being rather bulky for the mail. Having not yet succeeded in hitting on an opportunity, I send you a part of it in a newspaper which broaches a new constitutional doctrine of vast consequence and demanding the serious attention of the public, I consider it myself as subverting the fundamental and characteristic principle of the Government, as contrary to the true & fair, as well as the received construction, and as bidding defiance to the sense in which the Constitution is known to have been proposed, advocated and adopted. If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.”

Clearly, the words general welfare must mean something other than a grant of power for Congress to do whatever it pleased. What exactly did the framers mean?

Two words in the clause hold the key. General and common. The phrase simply means that any tax collected must be collected to the benefit of the United States as a whole, not for partial or sectional (i.e. special) interests. The federal government may promote the general welfare, or common good, but it must do so within the scope of the powers delegated and without favoritism.

 

 

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7 Responses to “Constitution101: The General Welfare Clause”

  1. Dano bivinsOctober 31, 2015 at 12:22 am #

    Any discussion of the meaning of the general welfare clause which limits itself to cherry-picking snippets of letters which give the opinion of the writer (“I have always regarded”) and then seeks to arbitrarily interpret the clause to be a refutation of the govt “doing whatever it pleases” (strawman) is misleading and myopic.
    What if it pleased the govt to defund education, food stamps, social security (which is self funded and fully healthy) or subsidies for hospitals so they can treat the poor?
    See?
    You have to look at what scotus ruled in the 30’s, because THAT is what the constitution means.
    Further debate is essentially moot.

    • Michael MaharreyOctober 31, 2015 at 1:34 am #

      Any discussion of the meaning of the general welfare clause which limits itself to the opinions of politically connected lawyers some 140 years after ratification, and that seeks to arbitrarily interpret the clause to justify all of the things the writer wants government to do, is misleading and myopic. If you would like to bring to the table some founding era evidence to back up your broad interpretation of “general welfare clause,” I would LOVE to see it. Otherwise, you are right – further debate is essentially moot.

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