Posted on 18 February 2011 by admin
Posted on 26 April 2010 by admin
Many Americans are beginning to question the constitutionality of proposed programs such as government run health care. In response to these challenges, a misinterpretation of the ‘General Welfare’ clause seems to be the common support for such Federal programs. This article examines what the General Welfare clause actually means.
US Constitution Preamble:
“We the People of the United States, in Order 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. “
The Federal Government has continued to expand its power using misinterpretations of the US Constitution as its defense. The General Welfare clause is one of the most commonly misinterpreted and seemingly vaguest of all of the clauses in the Constitution. There is much that can be written on the subject, however, the meaning of the ‘General Welfare’ clause is easy to grasp with just a few observations. The first is the common definition of both general and welfare. The second is to which body or entity this clause applies.
General: “involving, applicable to, or affecting the whole”
Welfare: “the state of doing well especially in respect to good fortune, happiness, well-being, or prosperity.”
So, the US Constitution states that the US government will promote the state of well being, happiness, and prosperity for the whole. Those in defense of the expansion of Federal power (and what are now defined as Federal “welfare” programs and entitlement programs) stop there and are satisfied with this generic application of such a definition. However, in order to completely understand the meaning and intended purpose of this clause, you must define who or what makes up the “whole”. In other words, to whom does the General Welfare clause apply?
Article 1, Section 8:
“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;”
This section specifically defines to which body or entity the general welfare clause is to apply. Since the United States is specifically made up of the States themselves, this clause applies to the States as a whole and not the People. The US Constitution addresses specific entities throughout the document. The People as an entity are only addressed twice in the main body of the US Constitution and in no case does the General Welfare clause apply to the People specifically. However, the Constitution does specifically define the rights which are to be retained by the People, as you can see in the following constitutional amendments. Notice the 10th Amendment.
“…or the right of the people peaceably to assemble.”
“…the right of the people to keep and bear Arms, shall not be infringed.”
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,…”
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
“…elected by the people thereof…”
“…That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election…”
Looking at the two occurrences of “General Welfare” within the US Constitution, it is important to observe that in neither case does the phrase itself delegate any power. The first occurrence is in the Preamble to the US Constitution where the purpose of the Union and US Constitution is stated. The second occurrence is in article 1, Section 8 relating to the taxation authority of congress as stated before. Article 1, Section 8 is where all congressional authority is enumerated. It was understood that congress had no power that was not specifically enumerated in the US Constitution. A broad reading of the General Welfare clause would render the enumeration of powers pointless. There would be no specific limitation to Federal power. Instead, it would only require an argument that any action was for the general good. This was not the intention by those who created the document. To answer the original question, is the general welfare clause an enumerated power? No,not in either occurrence.
“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 General Welfare clause applies to the States of the Union, not to the People. However, it is certainly in the best interest of the People if the General Welfare of the states is promoted. Furthermore, even if this clause was determined that it did apply to the people specifically, it is clear that any benefit or enhanced well being should be general or applied to the whole and not a select portion.
It is also not an enumerated power. It states the purpose for the Union and US Constitution in the preamble as well as the purpose of raising taxes, but the phrase itself does not create any power itself. If ‘general welfare’ was carte blanche authority, it would render the limits of the Federal government to the enumerated powers meaningless. Article 1, Section 8 is not a list of suggestions of power, it is a list of delegated authority. If a power is not listed, congress is not authorized to write a law requiring an unlisted power and would need to seek amendment to the US Constitution.
It is important to note that under the 10th Amendment of the US Constitution, many of the programs that have been created by the Federal Government such as Federal Welfare, Social Security, Medicaid, Medicare, etc, would otherwise be perfectly constitutional under the jurisdiction of the states themselves.
More quotes from the founders regarding the General Welfare Clause of the US Constitution:
“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, remarks on the House floor, debates on Cod Fishery bill, (February 1792)
“[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