(A Discussion on the General Welfare Clause)
The other day an acquaintance asked that anyone who is knowledgeable about the Constitution write a commentary regarding something that was said on a webpage regarding the General Welfare Clause of the Constitution. The webpage is named Thinkprogress.org and the article in discussion was in regards to Governor Rick Perry’s lack of understanding of the Constitution. While I have very little regard for Governor Perry, I have less regard for the person who wrote this particular article, as it seems that they are the one who is lacking in understanding. Before I begin my discussion on the subject at hand, I feel it is only proper that I provide the quote from Thinkprogress.org that my discussion will attempt to refute.
According to Thinkprogress “Perry’s reading of the Constitution raises very serious questions about whether he understands the English language. The Constitution gives Congress the power to “to lay and collect taxes” and to “provide for the…general welfare of the United States.” No plausible interpretation of the words “general welfare” does not include programs that ensure that all Americans can live their entire lives secure in the understanding that retirement will not force them into poverty and untreated sickness.”
The term general welfare is found in only two places in the Constitution; in the preamble, which is merely an introduction that states the purpose of the Constitution itself, and in Article 1 Section 8, where it precedes the specifically enumerated powers upon which Congress may legislate. It is not an express grant of unlimited powers to do whatever Congress deems is in the best interests of the country, or the people.
From the moment our Constitution was written there has been a battle going on between those who believed that our government was one of limited, and clearly defined powers, and those who believe that the Constitution is open to interpretation, a living document, which allows our government to expand its powers all under the umbrella of the general welfare clause.
Among those who held the view that our government be one of limited powers were James Madison and Thomas Jefferson, while Alexander Hamilton led the way in believing the Constitution was open to interpretation and gave Congress the leeway to expand its powers as situations demanded.
In Federalist 41, James Madison attempted to explain the purpose of government, and the powers granted it by the proposed Constitution. He began by stating the various general areas upon which government could act; “1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the States; 4. Certain miscellaneous objects of general utility; 5. Restraint of the States from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.”
You see, the preamble to the Constitution states that its purpose was to “…form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” It was never intended that the federal government micromanage the affairs of the states, or the lives of the people.
To continue with Federalist 41, Madison went on to say “Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? … 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.”
If that isn’t clear enough, responding to the query as to whether the general welfare clause was a grant of unlimited power, Madison writes, “If not only the means but the objects are unlimited, the parchment [the Constitution] should be thrown into the fire at once.”
It seems a bit ironic that the two men who were responsible for writing the majority of the Federalist Papers could be so divided as to their interpretation of the general welfare clause, but nonetheless, Alexander Hamilton held a distinctly differing view than did Madison. Hamilton held that “Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things.”
In 1791, Hamilton wrote a paper entitled A Report on Manufactures, in which he stated, “The National Legislature has express authority “To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare” with no other qualifications than that “all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that “no tax or duty shall be laid on articles exported from any state.” These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision.”
As you can see, from the very beginning there were two trains of thought as to what the term general welfare implied. So, how are we to decide which was right and which was wrong? Well, in the Supreme Court case of Powell v. McCormack, the court ruled that “The values of the Framers of the Constitution must be applied in any case construing the Constitution. Inferences from the text and history of the Constitution should be given great weight in discerning the original understanding and in determining the intentions of those who ratified the constitution.”
James Madison is widely regarded to be the father of the Constitution, while Hamilton was merely a delegate, and a not very influential one at that, to the Constitutional Convention. According to records, the two other New York delegates to the convention, John Lansing and Robert Yates were diametrically opposed to Hamilton’s goal of a strong national government.
Former Supreme Court Justice Joseph Story, whose Commentaries on the Constitution are considered the chief cornerstones of early American jurisprudence, wrote, “The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant.”
James Jackson, a member of the House of Representatives in the first Congress once said, “We must confine ourselves to the powers described in the Constitution, and the moment we pass it, we take an arbitrary stride towards a despotic Government.”
Finally, in a letter to Albert Gallatin, 1817, Thomas Jefferson stated plainly that “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
Therefore it is obvious that the original intent of the founders was that our government be one of limited powers which were specifically enumerated in Article 1 Section 8 of the Constitution. However, over the years, the Supreme Court has ruled over and over again that the general welfare clause grants Congress an almost unlimited amount of power, all due to their misguided interpretation of the general welfare clause.
Yet our founders, even Hamilton, believed that the courts were not at liberty to interpret the meaning of the Constitution, it was merely their job to uphold it. In Federalist 81 Hamilton himself wrote, “In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.”
It was Jefferson’s belief that “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
Even former Justices have voiced their thoughts on the court interpreting what the Constitution meant. Former Justice Felix Frankfurter once said, “As a member of this court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.” Former Justice Hugo Black stated “Our Constitution was not written in the sands to be washed away by each wave of new judges blowing by each successive political wind.”
In the case of South Carolina v. United States, the court ruled “The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”
From all the data that I have provided, it is apparent that the general welfare clause was not a grant of unlimited power to the federal government. Instead it was an introductory clause which was clarified by the powers immediately following it. And, as the meaning of the Constitution does not change from generation to generation, Congress does not have the authority to enlarge, or expand, its powers simply because it decides that it is in the best interests of the nation to do so.
It is also painfully obvious that the writers at Thinkprogress.org are the ones who are severely lacking in their understanding of the Constitution, not Governor Rick Perry. Again, this is NOT an endorsement of Governor Perry. I am merely trying to present the truth, so that all who read these things may be able to judge for themselves if what they are being told, by either a candidate, or those who are attempting to smear them, are actually a factual representation of that truth.
I hope this has clarified what I believe to be the intent of our founders, and of the general welfare clause. I also hope that you will take the time to read what powers Article 1 Section 8 actually do grant our government. You may be surprised to see that many of the actions of our government that you take for granted, are actually an unconstitutional assumption, or usurpation of power, and finally “…That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government . . . . and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force…” Thomas Jefferson, Kentucky Resolutions.