Thursday, May 6, 2010

The General Welfare

“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….
US Constitution, Article 1, Section 8

The commerce clause of the Constitution has been used to justify all manner of government social spending. Does this clause mean that the government can legitimately spend tax money on any project that will enhance the welfare of any American?

A good place to start looking for the original meaning of the phrase “general welfare” is with the author of the constitution. The constitution was drafted by a constitutional convention in Philadelphia in 1786 and 1787. Its primary author was James Madison, who later became the fourth US President. Madison is considered the “father of the constitution.” Together with Alexander Hamilton, James Madison was also an author of the Federalist Papers. Madison authored Federalist #41, which discussed the question of general welfare [1].

Madison, writing as Publius, notes that some critics of the constitution claim that the language of the general welfare clause “amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare [1].”

Madison then goes on to note that the second half of the general welfare clause, the same sentence, lists seventeen powers of congress that allow the federal government to “provide for the common defense and general welfare of the United States.” Madison asks, “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 [1].” In other words, the constitution lists specific powers of congress that are to be used for the general welfare of the United States.

Madison went further in 1817 when he vetoed an internal improvements bill. In his veto message to congress, Madison wrote “Such a[n unlimited] view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them…. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress…. [4].”

Alexander Hamilton, another prominent author of the Federalist Papers, took a more expansive view of the clause, but was much more restrictive than modern interpretations. Hamilton wrote in the Report on Manufactures that a limiting factor for the general welfare clause should be “the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot [2].”

According to Hamilton, an appropriation under the general welfare clause must benefit the entire union, not just a locality, and definitely not an individual. In Hamilton’s view, the general welfare might include projects such as parks, libraries, and museums that are open to all people. It would not include transfer payments to benefit an individual. Nor would it include earmarks to benefit the people of a single community.

Even though Thomas Jefferson was not directly involved in the writing of the constitution, he agreed on a limited interpretation of the commerce clause. In his Opinion on National Bank, Jefferson wrote, “It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please... Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers and those without which, as means, these powers could not be carried into effect [3].”

Jefferson realized that an open interpretation of the wording of the constitution would mean that there was no limit at all on the powers of the federal government. If a government can enact any law that it believes will be for the benefit of the nation, then the government can do anything at all. We have seen this in our own time as the government expands beyond its constitutional role to take actions that the founding fathers would have never considered constitutional.

Whatever the founding fathers thought, the principle of federal restraint with respect to spending on the general welfare lasted less than a hundred years. Under President Lincoln, congress passed the Pacific Railroad Acts of 1862 and 1864, which subsidized the construction of transcontinental railroads [6]. This was similar in many respects to the bill that James Madison vetoed in 1817. However these subsidies could be justified under Hamilton’s concept of national good.

In contrast to Lincoln, Grover Cleveland, a conservative Democrat left a legacy of fiscal restraint and protection of free markets. In 1887, congress passed the Texas Seed Bill which appropriated $10,000 to purchase seed for Texas farmers in drought-ridden areas. Cleveland vetoed the bill, stating “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 [5].”

Since the days of Lincoln, the interpretation of the general welfare clause has continually expanded. Franklin Roosevelt’s New Deal programs were a vast expansion of federal power, as well as a vast expansion of federal spending on social projects. Lyndon Johnson’s Great Society broke new ground in creating more federal entitlements and transfer payments, transfers of federal tax money to for the benefit of specific individuals as opposed to the general welfare. Finally, our own Barack Obama has created a massive new federal entitlement to health care that not only redistributes money, it also requires Americans to purchase a privately marketed service under the guise of promoting the general welfare.

The first Supreme Court review of the general welfare clause came in 1936 in United States v. Butler [8]. The court agreed with Hamilton that the clause granted the federal government power to spend on areas that were not specifically mentioned in the constitution, but that the spending had to be for national welfare. Local spending did not meet the criteria.

Unfortunately, in 1937 the court revisited the issue in Helvering v. Davis [8]. FDR’s court packing scheme may have influenced the outcome of this case because this time the court ruled that congress could determine what constituted the national welfare. This essentially gave congress a black check to spend on whatever they could justify as being for the national welfare. It also overturned 150 years of tradition and the court’s own precedent which was established only a year earlier!

To date, no law has ever been ruled unconstitutional because it violated the general welfare clause. Therefore it falls to voters to vote out officials who allow unchecked – and ultimately unconstitutional – spending.


Kansas City MO
April 29, 2010

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