How General the General Welfare
Clause?
Colonel
Dan, SASS Life #24025
Anyone
that’s followed this column for more than a few months knows how I feel about
our government’s disregard of the Constitution so there’s no need to rehash
that. The question I’m asked regularly however
revolves around the basis on which Congress justifies the expansion of all this
power—spending and otherwise. My response
is always short and to the point—they just arrogantly ignore the Constitution
with impunity.
Question: When confronted by the indisputable facts,
what excuse do those in
“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;”
Now we’ve
argued about the definition of this for over 200 years in the courts, in the
congress and on the streets and you can reference almost any opinion you like
because most will seek out the interpretation that justifies their action. Given the difference of opinion over the
years, whose opinion really counts?
Whose view is definitive?
Speaking as a simple solider, I’d say it would be the folks that wrote
the original document even more so than the subsequent courts that bastardized
it. What did the Founders really
mean? After all, they’re the ones that
can actually answer questions first hand concerning original meaning/intent and
not be speculative or twisted politically by the passage of time wouldn’t you
think? OK, let’s see what they had to
say and put this question to rest. Let’s
ask James Madison, the Father of the Constitution, Thomas Jefferson and
Alexander Hamilton. Could they possibly shed
any light on this?
"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 letter to James Robertson
"[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
"The
powers delegated by the proposed Constitution to the federal government are few
and defined . . . to be exercised principally on external objects, as war,
peace, negotiation, and foreign commerce." - James Madison, Federalist 45
"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
“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
"Congress
has not unlimited powers to provide for the general welfare, but only those
specifically enumerated." - Thomas Jefferson, 1798
There you
have it. James Madison, the Constitution’s author and Thomas Jefferson the
author of the Declaration of Independence, specifically say that Congressional
powers are to be limited and defined – unlike most modern interpretations!
Admittedly,
Jefferson and Madison were not our only Founders. These two were strict
constitutionalists who feared the potential strength of any government. So
let’s look at another Founder’s opinion—Alexander Hamilton who historically saw
it in a somewhat looser vain.
"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
"No
legislative act … contrary to the Constitution can be valid. To deny this would
be to affirm that the deputy is greater than his principal; that the servant is
above his master; that the representatives of the people are superior to the
people themselves; that men acting by virtue of powers may do not only what
their powers do not authorize, but what they forbid." - Alexander
Hamilton, Federalist 78
In short,
Hamilton tells us that since the powers of Congress are enumerated and limit
Congress to those powers, any assumed authority outside those specified that
don’t have a direct relation to those explicit powers must be contrary to the
Constitution and therefore—unconstitutional.
From the
proverbial horses mouths to your own eyes—the all-encompassing General Welfare
Clause is not as all encompassing as our current “leaders” would have us
believe. In no way does that one phrase
grant unlimited power to the Federal government rather it pertains only to
those enumerated powers that can and ought to be applied universally and in
general to the several states.
Now
compare what you just read above from the Founders themselves to a Supreme
Court ruling in 1976 in Buckley vs Valeo.
“(the General Welfare clause is) a
grant of power, the scope of which is quite expansive, particularly in view of
the enlargement of power by the Necessary and Proper Clause ....It is for
Congress to declare which expenditures will promote the general welfare...
Whether the chosen means appear "bad" or "unwise" or
"unworkable" is to us irrelevant; Congress has concluded that the
means are "necessary and proper" to promote the general welfare, and
we thus decline to find this legislation without the grant of power in Art. I Sec. 8.” Buckley v. Valeo
(1976) 424
Important note: What was omitted from the necessary and
proper clause referenced in the ruling above was the rest of that original
clause of Section I Article 8 which states, “To make all laws which shall be
necessary and proper for carrying into Execution the foregoing Powers
[foregoing = those specifically enumerated] and all other Powers vested by
this Constitution in the Government of the United States, or in any
Department or Officer thereof.”
“Vested by this Constitution…” is key—again, authority that is necessary
and proper for the general welfare which pertains only to the powers enumerated
by the Constitution.
As a very learned judge, who is a good
friend of mine, interpreted this 1976 Supreme Court view some 200 years removed
from the Founders, “`it [the general welfare clause] means just what I choose
it to mean.”
If today it does mean “just what I
choose it to mean”, then the Court and Congress have set themselves above the
Constitution and it no longer serves as America’s anchor of freedom, justice and
law but has degenerated into that “living, breathing document” whose meaning
can change routinely, blown along by prevailing political winds. This was NOT
the original intent, not if we truly believe the Constitution is the supreme
law of the land and that no man is above the law. As that favorite judge of
mine put it, “Interpreting the Constitution as a "living, breathing
document" subject to reinvention according to the political whims of the moment
is not just bad policy. It is a suicide
pact.”
So you see
what 200 years of bastardization, twisting and manipulation in the name of political
power grabbing can do to the Founder’s inspired work! It’s both sickening and infuriating.
Just the
authoritative view from our Founder’s saddles along side the distorted one of
our
Contact
Colonel Dan: coloneldan@bellsouth.net