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Rob Natelson, recognized national expert on the framing and adoption of the United States Constitution, offers a lesson on the general Welfare clause of the United States Constitution. He discusses the original meaning of the words themselves, the meaning of general welfare in the preamble, the original meaning and understanding of the clause, the taxing clause, the Hamiltonian vs the Madisonian view, anti-federalist concerns, modern interpretations, court cases which have turned its meaning upside down, practical reasons for a limiting view of the clause and the Constitution as a whole, and more.
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Awesome! Looking forward to listening to this while at work today!
I've heard those two words bantered aboout by people all over the political spectrum. None of them seem to know what they're talking about. Thanks Professor!
James Madison talked about this particular point of interpreting "General Welfare" and the Commerce clause while debating a bill in the early congress concerning of all things Cod Fisheries.
http://memory.loc.gov/cgi-bin/ampage?collId=llac&…
Madison
t is to be recollected that the terms "common defence and general welfare," as here used, are not novel terms, fist introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary it was always considered as clear and certain that the old Congress was limited to the enumerated powers,and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it ever was supposed or suspected that the old Congress could give away the moneys of the States in bounties, to encourage agriculture, or for any other purpose they pleased? If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.
The novel idea now annexed to these terms, and never before entertained by the friends or enemies of the Government, will have a further consequence, which cannot have been taken into the view of the gentlemen. Their construction would not only give Congress the complete Legislative power I have stated–it would do more–it would supersede all the restrictions understood at present to lie on their power with respect to the Judiciary. It would put it in the power of Congress to establish courts throughout the United States, with cognizance of suits between citizen and citizen, and in all cases whatsoever. This, sir, seems to be demonstrable; for if the clause in question really authorizes Congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, Congress must have power to create and support a Judiciary Establishment, with a jurisdiction extending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws and apply money, providing in any other way for the general welfare.
I shall be reminded, perhaps, that according to the terms of the Constitution, the Judicial Power is to extend to certain cases only not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen that the specification of certain objects does not limit the import of general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objects of Legislative regulation as well such as fall under the Judiciary article in the Constitution, as these falling immediately under the Legislative article; and if the partial enumeration of objects in the Legislative article does not, as these gentlemen contend limit the general power, neither will it be limited by the partial enumeration of objects in the Judiciary article.
There are consequences, sir, still more extensive, which, as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can apply 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 establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may undertake the regulation of all roads, other than post roads. In short, everything, 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 the application of money, and might be called if Congress pleased provisions for the general welfare.
The language held in various discussions of this House, is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this Government, as limited to certain enumerated powers, instead of extending, like other Governments, to all cases not particularly excepted. In a very late instance–I mean the debate on the Representation bill–it must be remembered, that an argument much urged, particularly by a gentleman from Massachusetts, against the ratio of one for thirty thousand, was, that this Government was unlike the State Governments, which had an indefinite variety of object; within their power; that it had a small number of objects only to attend to, and therefore that a smaller number of Representatives would be sufficient to administer it.'
I thought the most fascinating piece of information was that the Supreme Court has never ruled that a government program violates the general Welfare clause…
That's because the general Welfare clause was not a source of power, and there is nothing there to violate.
I'd certainly agree that there's nothing to violate if, like the preamble, the general Welfare clause was neither a grant nor a limit on power. But, since it's a limitation on power, and government goes beyond those limitations each and every single day, I see it as a tragedy of sorts that the courts have never ruled that a government program violates it's clear limits.
In my opinion, there is a way to attack this clause and it should be done in steps. Step one is to go after the violation of the rule that ALL appropriations must be GENERAL. Since the Supreme Court adopted Hamilton's version, as supported by Justice Story, use their words and the Court's ruling against Congress for violating the rule.
Hamilton wrote:
“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.”
Story wrote:
“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.”
Pork and earmarks violate the rule and would disappear because they are not general. Bribing members of Congress with money for projects their State or district in exchange for an important vote would disappear because it is not general.
I am sure Rob Natelson could have the paperwork ready to file in 30 days and the brief would be 20 pages or less because it would only address the rule.
Fantastic!! Now if Prof. Natelson could dissect the "commerce clause" in the Constitution and how it has been perverted.
Great quote from Madison;
"Having not yet succeeded in hitting on an opportunity, I send you a part of it in a newspaper, which broaches a new Constitutional doctrine of vast consequence, and demanding the serious attention of the public. I consider it myself as subverting the fundamental and characteristic principle of the Government; as contrary to the true and fair, as well as the received construction, and as bidding defiance to the sense in which the Constitution is known to have been proposed, advocated, and adopted. 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. It is to be remarked that the phrase out of which this doctrine is elaborated is copied from the old Articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason, as less liable than any other to misconstruction.
Remaining always most affectionately yours"
January 21, 1792
From James Madison – Letters and Writings Vol. 1 to Edmund Pendelton
Outstanding history Rob Natelson. I learned a lot of specific details, and what you said seems to match up with what I’ve observed.
Dennis Kucinich wanted that bill, cause the existing healthcare bill will effetely prohibit states from implementing signal payer systems. The same problem Rob was talking about only also like Rob was talking about Dennis Kucinich wanted an even stronger signal payer system which the bill would not quite do in Dennis Kucinich’s opinion.
Your right this system is fundamentally oppressive to conservatives as they won’t let us go down yet will let people go up. They have no concept of liberty, equality or justice.
I agree all our experience in human nature, and with government in general tells us that less centralized government would make us all healthier, wealthier, happier, and more successful.
There is a marketable example of this in how the smaller European states too get more bag out of their buck then we do. Your right in every respect locals generally know better then federals how to deal with the people and local challenges.
I agree it does make perfect sense why they call em post roads, in fact still in Colorado, they still got em mile markers on the interstate highway like clock work that you can look up on the map to tell ya exactly where you are.
its a "post road" Just as they uses to have em, and clearly its not for just mail.
Love the intro music. It's like listening to the old Harry Browne show, God rest his soul…
Thanks, Derek! That's exactly where I got it from – glad to know someone else remembers…
For further reading Publius Huldah has some great blogs about the Constitution
http://publiushuldah.wordpress.com/
And the high courts have ALWAYS sided with Alexander Hamilton who believed just the opposite hence the mess we are in right now. Way to much government control and power.
I didn’t think that started until 1937 because of the games FDR played to twist the arms of the SCOTUS.
The power of the SCOTUS to just change the constitution by definitions instead of amendments started during Jefferson’s term though.
thats why its a democratic republic. they knew a total democracy would consume itself.
yes ! no more large cokes for gov ! it must go on a diet and trim down
didnt ben franklin say a democracy is two wolves and a lamb voting on whats for dinner?…..and a democratic republic is 2 wolves and a well armed lamb voting?
hence the checks and balances,the rule of law, and the constitutional guidelines to assure the lamb
What’s it matter?
No gold. No silver. No genuine currency.
Fednotes are fiat. Always have been.
The inclusion of this clause was a tremendous mistake. Why include a clause so vulnerable to exploitation? Men like Madison were already making excuses for the general-welfare clause before the Constitution was even ratified. The Confederate Constitution was right to eliminate the general-welfare clause, along with other pernicious elements of the Constitution.
Constitutionalists didn’t like it because it creates a nation of slaves to serve the elite class.
It does not mean that the government provide anything for healthy citizens too lazy to get out and work. We now have generations being raised on welfare and that should stop. If people are unable to work or need TEMPORARY asssitance that is one thing but to provide everything for generations just to get votes for a particular party is insanity.
Steve, I think there’s an argument to make for the govt having some control over the value of the currency via paper vs gold standard, which would be subject to any inflationary influence worldwide, however, we need to elect folks with some economic savvy to manage it all, not community organizers and feisty attorneys, who seem to be the most popular choice for elected official anymore
Preamble says: PROVIDE for the common defense & PROMOTE (not “provide”!!!) the general welfare
your party serves the global economic kings of wall street. how has closing down 40, 000 factories over the last three decades and shipping out 30 million middle class jobs. and those opportunities. all that has been done is taking a great nation and people that produced and made everything in our land our lives and our homes into a low wage nation of working poor that produces nothing in their lives and homes has that served the general welfare in policy . or made more welfare eligible people in the service to the enrichment of the global economic kings of wall street . we have gone thru. over. 330 trillion dollars of GDP in the last 30 years has that reduced poverty prisoners or inequality in our nation thru our economic policies that serve only wall street
David Remember the Ross Perot vs Al Gore NAFTA debate ? Then GAT ? Never could figure how Clinton got away with passing the treaties that Bush wrote. When lilbush tried to allow the Mexican trucking companies to come take the loads in the USA and failed I was releived But the Obama did it and it never even made the TV news.
jeff all tax and trade is approved by the senete ifs a tax cut a subsidies or trade deal the republican have supported. by votes nearly 100 percent on these issues they serve wall street over our nation and peoples interest with a small percentage of blue dog dems on any vote in these policies
The longer phrase is “promote the general welfare”, which is certainly an appropriate function for a govt created by a free people. That is not even close to “provide” the general welfare, as some would choose to understand it, as a means to enslavement and dependence.
The Constitution can be ignored by the Govt. because most Americans don’t know what is in it; shame on us!
“general walfare clause” “I smell a rat” !
gee, duhhhhhh,it doesn’t meen I getta get food stamps???