Thursday, September 17, 2009

The meaning of "general welfare" in the Constitution

In honor of Constitution Day, I am presenting a short lesson on the meaning of the term "general welfare" in the Constitution. The term appears twice. In the 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 defense, 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.
and in Article 1 Section 8:
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 defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

Over time, Liberals and Progressives have used these references to "general welfare" to justify unlimited expansion of federal government power. They argue that, despite the Constitution's limit on the scope of the federal government to specific enumerated powers, the government has the power to do anything if it merely states it is to benefit the "general welfare". Therefore, they argue, the federal government has the power of taxation for the purpose of redistributing wealth, of mandating the purchase of health insurance, and so on.

James Madison, the Father of the Constitution, and Thomas Jefferson, the writer of the Declaration of Independence, wrote extensively about what is meant by the term "general welfare" in the Constitution. Their views reflect the original intent of the Constitution, which is its only meaning until it is amended otherwise. Madison was very specific in regards to Art.1 Sec. 8 and the words "general welfare". He said:
"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".

The following is a selection of additional quotes by Madison and Jefferson on "general welfare" and the Constitution:
"With respect to the two 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 in a letter to James Robertson

"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 a point 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 for 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; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare." James Madison

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

"To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it." Thomas Jefferson, letter to Joseph Milligan, April 6, 1816

"I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them." Thomas Jefferson

"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." James Madison, 4 Annals of Congress 179, 1794

"[T]he government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general. Charity is no part of the legislative duty of the government." James Madison

The Framers of the Constitution explicitly stated that charity is no duty or power of the federal government. They were not against charity, at the private or state government level, but they understood that if the federal government is given the power to do anything in the name of charity, it will inevitably use charity as an excuse to expand its own size and power, and the power and liberty of the states and of the people will be diminished and eventually destroyed. We are far down that path today. It would be good on this Constitution Day for Liberals and Conservatives alike to consider the above words and wisdom of our Founding Fathers and re-evaluate their views on the proper role and power of the federal government.

I forgot to include another quote from James Madison, which encapsulates the entire spirit of the Constitution and the intended legal role of the federal government:
"Powers delegated to the federal government are few & defined. Those which are to remain in the states are numerous and indefinite. The former will be exercised principally on external objects: war, peace, negotiation & foreign commerce.... The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties & properties of the people" James Madison


  1. Do you believe the Constitution is the rule of law?
    Do you believe in the original intent of our founding fathers?
    Do you want to reform Congress? If your answer is yes, we have
    to work together to make this happen.

  2. You've mentioned many arguments about what "general welfare" does not mean, but I would be curious to learn your views about what it actually does mean.

    That Article I Section 8 does not delegate a broad power for the government to do whatever it wants as long as it labels its action as promotion of the general welfare is obvious, even to those of us on the progressive side. Obviously, the federal government has never been delegated the power to legislate generally in favor of the general welfare, but only to tax and spend in favor of the welfare.

    So, what kinds of taxing and spending programs would be legitimate federal taxing and spending programs designed to promote the general welfare? Social Security? Medicaire? Universal, Single Payer Health Care? After all, the power has been delegated to the federal government, and while it is easy to note that it cannot give the federal government carte blanche to do whatever it wants, the clause requires some construction that renders it operable.

    Please understand, my question is not meant to be rhetorical or angry. I have written about Constitutional construction myself, have a JD from a supposedly top law school, and I consider myself a Textualist who rejects both the jurisprudence of Original Intent and of Living Constitutionalism. Just chiming in for some friendly discussion. :)

  3. Karen,

    The Preamble uses the phrase "promote the general welfare", but clearly the Preamble does not give the federal government any power, it only outlines the intent for which the states agreed to give it the specific powers later outlined.

    Article 1 Section 8 uses the phrase "provide for the common Defence and general Welfare of the United States". As explained by Madison, among others, the powers of the federal government are mainly directed outwards, relating to affairs between the United States and the other nations of the world. Indeed, nearly all of the powers in Article 1 Section 8 deal with matters unrelated to domestic policy. Excpetions include the creation of the Post Office, a national currency, and uniform laws regarding interstate commerce, patents and copyrights, and bankruptcies. These exceptions deal with matters that, if left to the states to handle individually, would result in chaos and a domestic economy unable to function in even the most basic sense.

    Examine the exact wording of 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"

    That sentence clearly states that Congress has the power to collect taxes in order to pay the debts and to provide for the common defence and the general welfare of the United States. Not "of individuals", but "of the United States." If we interpret the phrase "general welfare" as many liberals do, as applying to individuals -- meaning it gives Congress the power to take care of individuals by providing them with health care and other charities funded by taxation -- then we must apply that same meaning to the rest of that sentence. This would mean the federal government has the power of taxation in order to pay the debts of individuals, and to provide for the common defence of individuals.

    However, we clearly understand that the federal government does not have the power to pay off the debts of individual Americans, and it does not have the power to provide personal bodyguards for American citizens, to supply them with weapons to defend themselves, or even to provide general police forces inside the states.

    We must be consistent with our interpretation of the Constitution throughout. If Congress does not have the power of taxation in order to benefit certain individuals by paying their debts or providing for their defense, it does not have the power of taxation in order to provide for the welfare of individuals either.

    Any use of tax money by Congress for "general welfare" must be for the general welfare of the United States as a nation. For example, Congress may spend money to conduct scientific research to develop new nuclear energy technology to provide for the domestic energy needs of the United States. Or it may spend money to build a Panama Canal in order to open new trade routes to the United States. And so on.

    I hope this answers your question!