How General The General Welfare Clause?

by Colonel Dan

The Cowboy Chronicle

September 2007

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 Washington use to justify actions that factually exceed enumerated constitutional limits? Answer: They hide behind that ubiquitous General Welfare Clause. And what is the General Welfare Clause? Article 1, Section 8 of our Constitution:

“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

Hamilton uncategorically states that all congressional powers are enumerated and that the very existence of these enumerations alone makes any belief that Congress has full and general legislative power to act as it desires nonsensical. If such broad congressional power had been the original intent, the constitutionally specified powers would have been worthless. In other words, why even enumerate any powers at all if the General Welfare clause could trump them?

"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 US 1, 90-91 emphasis added.

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 Washington politicos some 200 years later.

Contact Colonel Dan: coloneldan@bellsouth.net