by Bob Greenslade
With the nation in the midst of an economic crisis, many groups and individuals are questioning the massive spending and so-called economic stimulus bills recently passed by Congress. This includes bailouts and appropriations known as earmarks and pork-barrel spending. Since the constitutionality of federal spending is never part of the debate, we need to re-visit Congress’ power to tax and spend.
The Taxing and Spending Clause
Congress’ power to tax and spend is found in Article I, Section 8, Clause 1 of the Constitution for the United States of America. This Clause grants Congress the 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.”
Constitutional Purposes of Taxation
Pursuant to this Clause, Congress can only impose taxes for three purposes. First, to “pay the debts…of the United States.” This provision was inserted, primarily, to give the federal government the ability to extinguish the existing debts of the United States and was not intended to grant Congress the discretionary power to dream-up ways to incur new debts. Second, to “provide for the common Defense…of the United States.” This provision enumerates the primary purpose of the federal government and grants Congress the power to raise the needed revenue. Third, to “provide” for the general Welfare of the United States.” Since most federal spending falls under the third clause, which is commonly known as the General Welfare Clause, it will be the focus of this article.
Definitions of “General” and “Welfare”
In order to accurately examine the general welfare provision, it is necessary to establish the meaning of the words general and welfare.
“General. 1: involving or applicable to the whole. 2: involving, relating to, or applicable to every member of a class, kind or group.”
“Welfare. 1: the state of doing well, esp. in respect to good fortune, happiness, well-being or prosperity.”
The word welfare is derived from the words “well” and “fare” and means a “state of faring well”or “well being.” When the Framers used the word welfare in the Constitution they were using it in this context. They were not referring to government give-a-way programs for the poor, disabled, disadvantaged, etc. These programs were virtually unknown to the Framers and would have been classified, in the language of the day, as a form of poor relief.
From the above, the common definition of the general welfare phrase, as used by the Framers in the taxing clause is: “the whole group’s well being.”
Since the general welfare phrase is annexed to the words “United States,” the whole group being referenced is a group of States called the “United States of America.” Thus, this Clause grants Congress the power: “[t]o lay and collect taxes to provide for the well being of the States in their united or collectively capacity.”
Alexander Hamilton confirmed this in Federalist Essay No. 83:
“The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer.” [Emphasis not added]
The Original Controversy
Following the close of the Federal (Constitutional) Convention of 1787, a controversy arose over the meaning and scope of the general welfare phrase. The Anti-Federalists, who opposed ratification of the proposed constitution, were vehemently opposed to this provision because they believed it was an abstract term and Congress alone would determine its scope and meaning. They also asserted this provision amounted to an unlimited grant of legislative power.
The Federalists asserted that the Anti-Federalists had misconstrued the construction of this provision. James Madison, who is recognized by some as the father of the Constitution, argued that the general welfare phrase was a qualifying term, not an independent grant of power. He claimed the general welfare provision could not be construed as an unlimited grant of legislative power because it was followed by an enumeration of particular powers. Since the federal government was a government of limited powers, Madison asserted the power to tax and spend was confined to the enumerated legislative fields committed to Congress by the Constitution.
The United States Supreme Court
Following his election in 1932 and the implementation of his so-called New Deal policies, much of President Franklin Roosevelt’s legislation was challenged as unconstitutional. A majority on the Court, who had been appointed by Republicans, began declaring cornerstones of the New Deal unconstitutional in 5-4 decisions. This infuriated Roosevelt and he threaten to pack the Court with justices who would be more sympathetic to his New Deal legislation.
In 1936, in the case of U.S. v. Butler, the scope of the General Welfare Clause indirectly reached the United States Supreme Court in a challenge to the Agricultural Adjustment Act of 1933. Even though the Court again ruled against the New Deal in a 5-4 decision, it laid the foundation for Congress to exercise additional taxing and spending power through the General Welfare Clause.
A little over a year after the Butler decision, the Supreme Court decided a case that dealt specifically with the General Welfare Clause. This case involved a challenge to various provisions of the Social Security Act of 1935. Since there was no constitutional authority for this type of scheme, the federal government had to find a way to bring it under the umbrella of a clause in the Constitution. That provision was the General Welfare Clause. Citing the Butler case as precedent, the Court, in Helvering v. Davis, sustained the constitutionality of the Social Security Act in a questionable 5-4 decision:
“Congress may spend money to aid in the ‘general welfare.’ There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision.” The conception of the spending power advocated by (Alexander) Hamilton and strongly reinforced by (Supreme Court Justice Joseph) Story, has prevailed over that of Madison, which has not been lacking in adherents (supporters). [Bracketed words added for clarification]
Even though the Court’s ruling, in the author’s opinion, was erroneous and can be refuted in whole or in part, this analysis will focus on the views expressed by Hamilton and Story because their interpretations, if they were being followed, would render the majority of all federal spending programs, including earmarks and pork-barrel spending, unconstitutional.
NOTE: The opening clause of the Social Security Act states it is: “An Act to provide for the General Welfare.”
Hamilton’s Broad Interpretation
In his 1791 “Report on Manufactures,” Alexander Hamilton asserted the general welfare provision conferred a power separate and distinct from the specific grants of legislative power contained in the Constitution. He also claimed the specific grants of legislative power did not qualify or limit the meaning of the general welfare phrase. Therefore, Congress, according to Hamilton, had an independent and unspecified power to tax and appropriate money for the general welfare.
Even though Hamilton asserted the appropriation of money for the general welfare is totally within the discretion of Congress, he cautioned there are several limitations on their power.
First, Congress cannot use this provision as a pretext to legislate for the general welfare generally. It can only tax and spend for the general welfare of the United States.
Second, the appropriation must be applied to the whole (general) and cannot be local or particular.
“That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.”
Third, Congress cannot use the power of appropriation to do things “not authorized in the Constitution.”
“No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.”
When the States adopted the Constitution they agreed to unite specially – not generally. As stated by Alexander Hamilton in Federalist Essay No. 32, the Constitution would only establish a “partial union” between the States. A limited union equals limited powers. In other words, the States are only united within the scope of the limited powers delegated to the federal government. Thus, this provision cannot be construed to grant Congress the power to tax and spend to do things “not authorized in the Constitution” because the States are not united outside of the delegated powers and the general welfare provision is restricted to the States in their united capacity.
Story’s Commentaries on the Constitution
Joseph Story was a Justice on the United States Supreme Court from 1811-1845. In his 1833 commentaries on the Constitution, which the Court adopted in 1937, Story supported Hamilton’s assertions concerning the general welfare provision.
Story agreed with Hamilton that the general welfare provision was a component of the taxing power and not a grant of legislative power:
“The power to lay taxes is a power exclusively given to raise revenue, and it can constitutionally be applied to no other purposes. The application for other purposes is an abuse of the power; and, in fact, however it may be in form disguised, it is a premeditated usurpation of authority.”
He also supported Hamilton’s assertion that appropriations must be general:
“A power to lay taxes for any purposes whatsoever is a general power; a power to lay taxes for certain specified purposes is a limited power. A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them. If the defence proposed by a tax be not the common defence of the United States, if the welfare be not general, but special, or local, as contradistinguished from national, it is not within the scope of the constitution.”
Things not Authorized in the Constitution
If Congress cannot use the power of appropriation to do things “not authorised in the Constitution, either expressly or by fair implication,” then where would one look to find a basic blueprint so this rule can be followed?
Ironically, that would be a Federalist Essay written by James Madison. In Essay No. 45, he distinguished the external powers granted to the federal government from the domestic powers reserved to the States:
“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 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 of the people; and the internal order, improvement, and prosperity of the State.
“The operations of the federal government will be most extensive and important in times of war and danger, those of the State governments in times of peace and security.”
As stated by Madison, the powers of the federal government pertain, for the most part, to external or foreign affairs and do not extend to the life, liberty or property of the people of the several States. This constitutional principle, standing alone, disproves any assertion that Congress was granted broad authority under the General Welfare Clause. It also negates any claim that Congress was granted the authority to establish and fund domestic social programs under the guise of the general welfare. Thus, any appropriation to fund these programs is unconstitutional irrespective of whether it meets the general (apply to the whole) test.
In his analysis, Justice Story stated the federal government had not been granted the authority to meddle with the “systems of education, the poor laws, or the road laws, of the states.” Yet, Congress is using the general welfare provision to encroach in all of these areas despite the fact that it does not have the constitutional authority to do so under any provision of the Constitution.
Since the federal government was not granted any general authority over social or domestic issues within the several States, Congress is unconstitutionally taxing the American people “to do things not authorised in the constitution.”
Justice Story also addressed the appropriation of money for foreign purposes:
“If the tax be not proposed for the common defence, or general welfare, but for other objects, wholly extraneous, (as for instance, for propagating Mohammedanism among the Turks, or giving aids and subsidies to a foreign nation, to build palaces for its kings, or erect monuments to its heroes,) it would be wholly indefensible upon constitutional principles.”
Despite this limitation, Congress is using the general welfare provision as its constitutional authority for appropriating billions of dollars for foreign aid programs like those mentioned by Story. Congressional abuse has become so pervasive that Congress taxes the American people to build homes and fund birth control programs in foreign countries. As stated by Story, this type of spending is “wholly indefensible upon constitutional principles.”
NOTE: The Founders would have categorized Social Security as a form of poor relief. Thus, as stated by Story, the federal government never had the constitutional authority to tax and spend to establish this program in the first place. Yet, the Supreme Court adopted Story’s interpretation of the general welfare provision and then used it to declare the Social Security Act constitutional.
Earmarks and Pork-Barrel Spending Defined
After doing an online search to find some easy to understand definitions, I settled on the ones found on Wikipedia because they are accurate and touch on the constitutional rules placed on Congress’ power to tax and spend under the general welfare provision.
EARMARK: “a congressional provision that directs approved funds to be spent on specific projects.” Typically, a legislator seeks to insert earmarks that direct a specified amount of money to a particular organization or project in his/her home state or district.”
PORK BARREL SPENDING: “government spending for localized projects secured solely or primarily to bring money to a representative’s district…benefits are concentrated in a particular area but whose costs are spread among all taxpayers.”
The reader will note the use of the words local and particular in defining the scope of these terms. Since congressional spending for the general welfare cannot be local or particular, these appropriations are, in the words of Justice Story, “not within the scope of the constitution.”
Here is an easy to understand example of how this type of spending works and why it is unconstitutional. At the present time, Congress imposes a general gasoline tax of 18.4 cents per gallon throughout the United States. When Congress writes a spending bill and a powerful member of Congress wants to buy some votes from the folks back home, he places an earmark in the legislation to have a 3 million dollar bicycle trail built in his home State or congressional district. The money for the project is appropriated from the general fund of the United States where the gasoline taxes were deposited with other taxes of a general nature. Thus, taxes from the general fund were used to finance a local or particular project within an individual State. This is unconstitutional. The project was not for the welfare of the States in their united capacity. This is unconstitutional. Since building bicycle trails in the States is
“not authorised in the Constitution, either expressly or by fair implication,” the appropriation failed this test and is unconstitutional.
In other words, Congress cannot impose a general tax throughout the United States, put the money in the general fund of the United States, appropriate money from the general fund of the United States, and then spend the money for a local or particular project.
Summary of the Rules for Taxing and Spending
Every tax and appropriation that is not to pay the debts or provide for the common defense of the United States is constitutionally governed by the following rules.
1-The tax and appropriation must be for something authorized in the Constitution. If this rule is met, then the second rule comes into play.
2-The appropriation must be general, i.e., apply to the States in their united or collective capacity. Congress cannot tax and appropriate money for local or particular projects.
Every dollar contained in every spending bill passed by Congress for the “general Welfare of the United States” must meet both of these requirements to be constitutional. When these rules are applied, we find the majority of all federal taxes being imposed by Congress either fund programs and projects not authorized in the Constitution or are for local or particular projects. Thus, the majority of all federal spending, outside of the general operating expenses of the federal government, is unconstitutional because these two rules are either ignored or violated by Congress.
When federal taxation and spending is placed under a constitutional microscope for examination, we find the document has been infected by a wealth-eating virus called “members of Congress.” These individuals, who took an oath to support the Constitution prior to taking office, have disregarded the interpretations and limitations expressed above and unconstitutionally adopted a new interpretation of the general welfare provision. Their interpretation deletes words, disregards words, changes the meaning of the words “general” and “welfare,” and is absent of any of the limitations expressed by the Founders. In short, members of Congress claim they have the unlimited power to tax, spend, and legislate, as long as they cite the general welfare as the constitutional authority for the legislation.
And to add insult to injury, congressional appointees in the federal judiciary have constructed an obstacle course that makes it almost impossible for the American people to use the legal system to stop Congress from taxing them to fund programs not authorized in the Constitution.
Now that we know the Congress of the United States has been violating the taxing and spending clause of the Constitution for decades and pushing the nation to the brink of economic ruin, the question is: what are we going to do about it? Our children and grand children are waiting for our decision.