A Practical Examination of the General Welfare Clause

To advance an agenda and ideology Congress, as well as many citizens, behave as though the United States is a democracy rather than a constitutional republic.  Elected officials attempt to justify their actions, or further their ambition and avarice by promoting the idea the United States is a democracy.  At Senator Ben Cardin’s health care town hall meeting in 2009, union supporters of nationalized health care were chanting “We are a democracy, health care now”.  How many times have you heard, “we won”, or Obama received 53% of the popular vote (actual 26% of the total population) and it was a mandate by the people for change.

The ebb and flow of a democracy is destructive, not constructive, to individual rights and liberty.  A democracy affords those in power unconstrained authority to arbitrarily institute those laws or regulations they deem appropriate.  The minority is subjugated to populist whims which circumvent individual rights and legal protections.

The Constitution is a mere shadow of its original intent; instead it has been subverted, original intent and meaning perverted, and power has been usurped by all three branches of the federal government.  More importantly, the balance of powers between the state and federal governments has been turned on its head.  Indeed, the Constitution was constructed to create an union of the several states known collectively as the United States; to define the distribution of power amongst the three branches of the federal government (checks and balances), and to define the powers retained by the states and those powers ceded by the states to the federal government (federalism).

The several states created the federal government.  The Declaration of Independence, the Articles of Confederation and Perpetual Union, and the Constitution definitively establish states’ sovereignty.  The Declaration of Independence announced to Britain and the world, that the colonies were free and independent states.  The title Articles of Confederation and Perpetual Union concludes with “between the States of” and goes on to list all the states.  Article II explicitly states “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States, in Congress assembled.”  The Articles were established by state representatives and ratified by all thirteen states.  State representatives met in Philadelphia at the constitutional convention in 1787 to amend the Articles of Confederation.  States, through their representatives created the Constitution, state legislatures ratified the Constitution, and only by approval of 3/4ths of the state legislatures can the Constitution be amended.

The states, through the creation and ratification of the Constitution, ceded limited powers to the federal government.  All powers not ceded to the federal government were retained by the states.  The tenth amendment of the Bill of Rights states unambiguously, “The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  This can be re-written to say… The powers not delegated to the United States under Article 1 Section 8, nor prohibited by it to the states under Article I Section 10, are reserved to the states respectively, or to the people.

Anti-federalists insisted upon a Bill of Rights to appease concerns regarding abuse and misuse of power granted to the federal government.  The tenth amendment was specifically included in the Bill of Rights to address anti-federalist concerns regarding the interpretation of Section I Article 8.  Article I Section 8 established the enumerated powers ceded by the states to the federal government.  The language is subverted and twisted to imply a broad grant of powers because the general statement at the beginning of the section includes “for the common defense and general welfare of the United States”.  Those people that believe the country is a democracy or knowingly wish to subvert the meaning of the Constitution, invoke the general welfare clause to further their agenda and ideology over the people without regard to life, liberty, or property rights.

Proponents of an all powerful federal government believe the general welfare clause is a broad grant of power for Congress to enact any legislation. This argument is blatantly absurd and subverts original intent and, more importantly, contradicts the understanding of the states at their respective ratifying conventions.  Why would the framers include a broad grant of powers to then go on to enumerate a definitive list of powers ceded by the states?  Why would the founding generation declare independence from Britain and fight a war to win independence from Britain to institute a government with unlimited powers?

In response to anti-federalist claims regarding implied powers of the general welfare clause, James Madison said the writing style of the time was to make a general statement followed by the particulars.  The general statement was the opening statement included in Article I Section VIII.  In federalist 41, Madison explains the absurdity of their argument:

Some, who have not denied the necessity of 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, 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?  If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever?  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. [Emphasis added.]

Secondly, both Hamilton and Madison address the powers ceded to the federal government in clear and unambiguous terms.  In federalist 32, Hamilton unequivocally explains which powers are ceded and which are not:

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will.  But as the plan of the convention aims only at a partial union or consolidation; the State governments would clearly retain all the rights of sovereignty which they before had, and which are not, by that act, EXCLUSIVELY delegated to the United States.

In federalist 45, Madison summarily dismisses all debate regarding federal powers:

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 the 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, and the internal order, improvement, and prosperity of the State.

The framers original intent and proper meaning of the general welfare clause was not a broad grant of power.  In fact, the general welfare clause is a restriction on the enumerated powers.   The restriction placed upon Congress is all legislation enacted must be for the general welfare of all the states.  Moreover, the general welfare clause is more narrowly defined as it says “common defense and general welfare of the United States”.  It does not say of the people.  The United States is the union of the independent and sovereign states.  The general power, as Madison refers to it, clearly means the laws passed by Congress, where Congress acted within the enumerated powers ceded to it by the states, must be enacted within the bounds of providing for the common defense and general welfare of the United States, not the people.  To avoid bigotry or favoritism legislation cannot specifically target a group or individual for harm or good.  That is, a law could not be passed to impose a levy solely on the people of Ohio, nor could a law be passed to benefit a particular person, company, or industry, etc.

In the first Congress, a bill was introduced to provide a subsidy to cod fisherman; in other words to subsidize a private interest.  Madison emphatically objected to the bill stating those who created the Constitution and the states that ratified the Constitution intended and understood, respectively, that it was not an indefinite government but a limited one.  Madison stated:

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 foundation, and transmute the very nature of limited government established by the people of America.

Thomas Jefferson understood the general welfare clause was not a broad grant of power:

“Congress shall have the power to lay and collect taxes, duties, imposts, and excises, to pay the debts, etc. provide for the common defense and general welfare of the United States.”  I suppose its meaning to be that Congress may collect taxes for the purpose of providing for the general welfare, in those cases wherein the Constitution empowers them to act for the general welfare.  To suppose that is was meant to give them a distinct, substantive power to do any act which might tend to the general welfare is to render all the enumerations useless, and to make their powers unlimited.

As author of the Kentucky Resolution, Jefferson reiterated the proper construction of the general welfare clause:

The construction applied by the general government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a 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,” and “to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their power by the Constitution…Words meant by the instrument to be subsidiary only to the execution of limited powers ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument.  [Emphasis added.]

Again, in 1825, Jefferson revisits the meaning of the general welfare clause:

We disavow, and declare to be most false and unfounded, the doctrine that the Constitution, in authorizing its federal branch 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, 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… The plain sense and obvious meaning were that they might levy taxes necessary to provide for the general welfare by the various acts of power therein specified and delegated to them, and by no others.

Pork barrel projects are frequently included in congressional legislation.  If Congress attempts to fund a project in the state of Nebraska to build a bicycle path, how does that provide for the general welfare of the United States?  While it may benefit those in the state, one could argue it only benefits those within a certain area within the state (i.e. a particular community, city, etc.).  Assuming this fell within the enumerated powers (it does not) it would clearly violate the general welfare clause.  Subsidies are another example of favoritism which violates the intent and spirit of the general welfare clause.  Consider ethanol subsidies where government redirects tax revenues for the sole purpose of advancing a specific technology and industry.  Without the subsidy the ethanol industry cannot survive in a free market economy.  If the federal government, acting collectively for the United States, can determine which state, county, or municipality can receive federal funds; or they can direct funds to a specific individual, group, company, or industry then Congress has violated the intent of the general welfare clause.

Health care legislation provides another example where Congress subverts the meaning of the general welfare clause to implement social programs furthering their agenda and ideology.  Congress assumes constitutional authority by stating they were granted broad powers to enact legislation for the general welfare of the United States.  Congress errantly and mistakenly looks to the general statement to justify their power to act rather than the enumerated powers.  No enumerated power was ceded to the federal government by the states to enact health care legislation.  Therefore, health care is a state issue not a federal issue.

Congress assumes a plenary grant of power, ignores the original intent of the Constitution, and acts as a democracy.  Consequently, Congress violates the principles of a constitutional republic and sets forth a dangerous precedent.  Congress knowingly ignores our founding as a constitutional republic therefore plunging the country into the abyss of lawlessness.

If the constitution is ignored and Congress acts under the pretense of a democracy, where mob rules; what limits are imposed upon Congress?  Who acts as judge and arbitrator over what is just and unjust, moral and immoral?  What laws can and cannot be enacted?  How are individual rights and property rights protected?  How does this secure the blessings of liberty?

According to Congress the mob rules; where a simple majority determines what laws can and cannot be enacted.  Without constitutional constraint Congress has unlimited powers resulting in a tyrannical government restrained only by themselves.  Comparatively speaking, it is no different than leaving a fox to guard the hen house.  What constrains the fox from devouring the chickens?  What constrains Congress from devouring the Constitution, and subsequently, the states and the people?  How are individual rights and property rights protected?  How does this secure the blessings of liberty?  How are the powers reserved by the sovereign states protected?

The misinterpretation of the general welfare clause results in a Congress with unlimited powers acting without constitutional restraint.  Consequently, Congress acts, to the detriment of the people, as though the country is a democracy rather than a constitutional republic.  Indeed, the foxes are guarding the hen house.


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