The General Welfare Clause

United States Constitution - We The People

The General Welfare Clause of the Constitution has been the source of much debate over the years as it relates to the legal authority of the Federal Government. Broad interpretation of the clause has been used for decades to justify Constitutional authority for Federal spending, regulation, departments and programs. This interpretation, however, is in absolute defiance of its original intention and has, in fact, become the antithesis of the meaning understood by the Framers of our Constitution.

So what exactly is the General Welfare Clause and what does it actually mean? Simply, it is the introductory clause to Section 8 of the Constitution which specifies the powers granted to Congress by the States:

Article 1, Section 8, Clause 1
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;

The meaning seems pretty clear, until one ponders what is meant by “general Welfare”. In the last 70 years or so, this has been interpreted by many a politician and Supreme Court Justice as essentially meaning anything that Congress decides it means. As such, for decades Congress has been free to pass any legislation that it deemed necessary for the “general welfare”. The problem is, those supporting that notion are dead wrong. The truth is different for a number of reasons.

First, the clause is not so much a power in itself as it is a general definition of the scope and purpose of the 17 enumerated powers that follow. If one conceded the broad interpretation of the clause, then it would be obvious that the remaining clauses are completely unnecessary. Why would the Founders define specific powers if they intended for the General Welfare Clause to be authorization for the Government to do whatever it pleased?

(all emphasis added to quotations is mine)

“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.” – Alexander Hamilton, Federalist 83

“With respect to the 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.” – James Madison, Letter to James Robertson April 20, 1831

“The Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient,’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed” – Thomas Jefferson, 1791

Second, the clause clearly refers to the general welfare of the United States, not individuals. Once again, even if you concede the broad interpretation, it would apply to the government itself and would not justify the government doing anything in support of individual general welfare.

Third, the broad interpretation relies on a generally accepted definition of the phrase which relates to the well-being of individuals within the population. Once again, this is contrary to the widely understood meaning at the time the Constitution was written.

  • general – of or pertaining to all persons or things belonging to a group or category
  • welfare – the good fortune, health, happiness, prosperity, etc., of a person, group, or organization; well-being:

When used to describe the “United States” as it is in the General Welfare Clause, it is clear that the Founders were referring to the well-being of the government. The reference in the Constitution to the “United States” is not a synonym for the People. It is the Union of States that collectively formed the Federal Government.

“[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.” – Writings of Thomas Jefferson 147-149 (Library Edition, 1904)

The General Welfare Clause is not a grant of a specific authority, let alone a broad or unlimited authority. Essentially what the Founders were saying is that any act in which the Federal Government engages should be to the equal benefit of all of the States in the Union. In essence, this clause goes more to the Founders being against special interests (or factions, as they called them) than it does to support a grant of authority. The Founders didn’t want the government to take actions that benefited only part of the Union, but only the Union as a whole.

Now, you may or may not agree with the argument I’ve presented. That is precisely why I have included numerous quotations on the subject. If you don’t believe me, that’s fine. Listen to the men that were there. The men that debated and wrote Constitution are the best source there is, certainly better than my opinion or even opinions of Supreme Court Justices.

“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” – Thomas Jefferson, 1798

“[We] disavow and declare to be most false and unfounded, the doctrine that the compact, in authorizing its federal branch 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, has given them thereby a power to do whatever they may think or pretend would promote the general welfare, which construction would make that, of itself, a complete government, without limitation of powers; but that the plain sense and obvious meaning were, that they might levy the taxes necessary to provide for the general welfare by the various acts of power therein specified and delegated to them, and by no others.” – Thomas Jefferson: Declaration and Protest of Virginia, 1825

“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.” – James Madison, Federalist 41

“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.” – James Madison, 1792

“[Congressional jurisdiction of power] is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.” – James Madison, Federalist 14

“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. 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 the limited Government established by the people of America.” – James Madison, Letter to Edmund Pendleton, January 21, 1792

Sound familiar? James Madison predicted the Department of Education, the Department of Transportation and the general belief of an all powerful government over 200 years ago.

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” – James Madison, Federalist 45

###

+Kevin A. Nye


Comments are welcome. Please feel free to keep the stupid ones to yourself.