The left uses the general welfare clause as its “the federal government can do anything and everything clause.” Meanwhile, the right has turned the phrase “provide for the common defense” into a similar justification for federal overreach.
Progressives invoke the general welfare clause to justify all kinds of unconstitutional federal actions, from national healthcare to federal education programs. While Republicans and conservatives usually condemn this expansive view of the general welfare clause, they defend the existence of the TSA, justify spying on Americans and make the case for building border walls by claiming the federal government can do whatever it needs to in order to defend America.
Reading the words “provide for the common defense” as permission for the federal government to do anything and everything related to “defending” the U.S. destroys the foundation of the Constitution every bit as much as progressive bastardization of the general welfare clause. In fact, the two phrases and concepts are intimately tied together.
We find the words “general welfare” and “common defense” in the same two places in the Constitution – the preamble and Article 1 Sec. 8. The exact same arguments against reading the general welfare clause as a general grant of power apply to the words “to provide for a common defense.”
It’s a simple matter of construction.
In the first place, a preamble in a legal document delegates no power and confers no authority. It describes generally the purpose of the instrument. In the case of the Constitution, it tells us the Union was established to accomplish the general purposes outlined. The preamble provides a basic framework through which we read the document, but it does not authorize the federal government to do anything. This is a progressive reading of the Constitution, but a lot of conservatives embrace it for their own purposes.
Article 1 Sec. 8 delegates specific powers to Congress and in the first clause, we again find the words “general welfare and to provide for the common defense.”
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.”
Does this mean that Congress can tax (and spend) for any purpose as long as it provides for the common defense and general welfare? No. Because a list of specific powers follow. When reading a legal document, the enumeration of certain powers logically excludes all powers not listed. This is actually a legal maxim – Designato unius est exclusio alterius – meaning, “the designation of one is the exclusion of the other.”
Alexander Hamilton asserted we should read Article 1 Section 8 in this way 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.”
In Federalist #45, James Madison wrote that “the powers delegated by the proposed Constitution to the federal government are few and defined.” If that’s true, we cannot take the terms “general welfare” and “common defense” to authorize a general legislative authority. This is nonsensical, as Madison pointed out in a letter to Edmund Pendleton dated Jan. 21, 1792.
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.”
This same reasoning applies to “common defense.”
So, yes, the federal government does have a responsibility to “provide for the common defense,” but it can only do so within the scope of the powers delegated. The federal government can declare war, support armies, provide a navy, grant letters of marque and reprisal, and call out the militia under certain conditions. But there is nothing even hinting at a power to create a Department of Homeland security, or to direct the NSA to spy on Americans, much less to build a wall, or grope me at the airport.
As I explained in my article on general welfare, the phrases “general welfare” and “common defense” simply mean that any taxes collected and funds spent must be for 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, and provide for the common defense, but it must do so within the scope of the powers delegated and without favoritism.