The General Welfare Clause

Ever since the mid 20th century, it's been fashionable to believe that the Constitution was written to give government the power to do essentially whatever it wishes. Nothing could be further from the truth. The entire Bill of Rights builds on the foundation set by the First Amendment, which begins: “Congress shall make no law...” This document was not written to give powers to the government, but to keep government from seizing powers. If the Constitution specifically mentioned, or “ennumerated,” a power (such as the power to found a post office), then that was a legitimate power. Whatever was not mentioned (such as the power to regulate the food we eat) was, in the words of the Tenth Amendment, “reserved to the States respectively, or to the people.” This wasn't just a novel idea thought up by philosopher-statesmen. This was the result of years under an oppressive British government that had claimed to have more than its ennumerated powers.

Writing in Federalist #45, James Madison, the “Father of the Constitution,” observed, "The powers delegated by the proposed Constitution to the federal government are few and defined.” (emphasis added) Thomas Jefferson wrote in 1798 that “...whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

Originally, these were common beliefs. Anything broader was extreme. But an egregiously broad interpretation is just what both neoconservatives and liberals use today to justify their statist machinations, whether it be the welfare state or the warfare state. One, poor sentence in the Constitution called the General Welfare clause is invoked most often as justification. This clause, it is argued, is a gateway for the government to take upon itself whatever powers it deems are in the “general welfare.” Here's what the clause actually says:

“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....” (Article I, Section VIII)

It's important to note that “Welfare” is not used in the sense of  “financial relief of impoverished citizens.” That usage is an invention of recent years. What this clause is saying is that the government can only collect money and use it in pursuance of a power that is not only ennumerated, but benefits everyone in the entire nation – the “general Welfare.” An example of taxes raised and money spent for the “general Welfare” would be funding for national security. But isn't providing for the “general Welfare” an ennumerated power in itself? No. Why, then, would the rest of Article VIII bother to spell out the specific powers granted to the federal government, like that to create “needful buildings?” Madison himself said, “For what purpose could the enumeration of particulars be inserted, if these and all others were meant to be included in the preceding general power?”

No Supreme Court ruling during the entire history of the Republic ever held otherwise – until the late 1930s. Up until that point, the Court had resisted Franklin D. Roosevelt's agenda of vastly expanding federal power. After the president infamously threatened to “pack” the Court with justices of his choosing, however, the justices' decisions coincidentally began to rubber-stamp the New Deal agenda. Two of these cases in particular, United States v. Butler and Helvering v. Davis, expanded the nation's view of the General Welfare clause to allow the Social Security system to be erected. This was then enshrined in the minds of succeeding generations, courtesy of the public school system.

The problem that a loose view of the General Welfare clause creates used to be obvious. So obvious, in fact, that James Madison predicted it in 1792: “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.”