by Michael Maharrey
Paul Abrams trotted out one of the favorite progressive arguments for virtually unlimited federal power in a March 9Â Huffington Post article.
The good ole’ “general welfare” clause.
Abrams brings quite an academic pedigree to the party. Yale educated, summa cum laude, multiple advanced degrees…which goes to show an Ivy League education doesn’t necessarily guarantee a student will actually graduate knowing anything.
OK, perhaps that’s a bit harsh. He may be a fine lawyer and an excellent medical doctor, but a constitutional scholar – not so much.
Abrams’ argument goes like this.
Article 1, Section 8, Clause 1 grants the United States government the unqualified and unlimited power to raise and spend money, for example, to: provide healthcare for the elderly (or for everyone); provide old-age pension; build roads, bridges, train tracks, airports, electric grids, libraries, swimming pools, housing; educate our children, re-train the unemployed, provide pre-school and day care; fund public health projects; invest in and conduct basic research; provide subsidies for agriculture; save the auto industry; create internets; and, yes, Tea Party Senator Mike Lee (R-UT), even provide emergency aid from natural disasters, and so forth. All subsumed under the authority to spend for the general welfare.
This raises a couple of interesting questions.
First off, if the very first clause of Article 1 Sec. 8 grants unlimited and unqualified authority for the federal government to do any damn thing it wants, why did the framers bother to waste ink enumerating all of those other powers? I mean, they were handwriting the thing for goodness sake. Seems to me an economy of words would have definitely been in order.
Secondly, how in the world can you square Abrams’ view of “general welfare” with James Madison’s assertion in Federalist 45 that the powers granted to the federal government are “few and defined”?
Oh yeah, you can’t.
And Madison didn’t.
In fact, the “Father of the Constitution” actually addressed this very argument.
“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.â€
You can look to the ratifying conventions for those proofs. In fact, the “anti-federalists” feared that people like Abrams would come along and make the very arguments he advances. The pro-constitutionalists assured them this wouldn’t happen – that the government powers were in fact limited and defined. The states ratified the Constitution based on these assurances.
Heck, even Alexander Hamilton, who was most hostile to the concept of limiting federal power, conceded as much.
“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.â€
Thanks for answering that first question for me, Alex.
Abrams’ runs into trouble because he doesn’t understand what the framers meant by “general welfare” and “common defense”. The first words of those two phrases hold the key. General and common. The phrase simply means that any tax collected must be collected to the benefit of the United States as a whole, not for partial or sectional (ie. special) interests. You know, swimming pools, health care for the elderly, and internets. (I don’t know what internets are. Ask Abrams.)
The power to pursue the things Abrams advocates lies with the states. As Madison put it:
The powers reserved to the several States will extend to all 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.
After Abrams wields the “general welfare†clause like a sword, slashing through the ignorant misconception that the framers actually intended a federal government with limited powers, he pulls out the “necessary and proper†clause for good measure.
Otherwise known as the “necessary and proper clause”, the 18th power makes it as clear as the Supreme Court Justice’s financial disclosure rules that the Congress has the authority to enact any law to spend money in pursuit of the general welfare.
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Perhaps it’s due to my lack of an Ivy League education, but I have absolutely no idea what exactly Abrams means by this sentence, or how he arrived at his conclusion. But I do know that Thomas Jefferson made it clear enumerated powers also constrain the meaning and scope of the necessary and proper clause.
“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 observedâ€
If nothing else, Abrams vividly illustrates Jefferson’s point. For what he may lack in understanding of the original Constitution he certainly makes up for in using his ingenuity to torture into a convenience many instances.
Very well-written. Having graduated from UT Law, I can state from experience that what is taught is that the Constitution, for the most part, means what the US SCt says it means. There is far more energy put into the discourse in this TAC site on the express meaning of the Constitution than there is in law school. However, I suppose the law school approach is for good reason, in that if you want to argue the Constitution in the courts, you're likely going to have to do so using the reasoning laid down in the case law – unfortunate as that may be.
The first enumerated power, the power to tax, sets the stage for what purposes those taxes will be spent on which are laid out in the remainder of the specific enumerated powers of Article 1, Section 8. They identify what "Common Defense" and "General Welfare" mean. This article from the Huffington Post clearly, and on purpose, ignores the history and purpose not only of Article 1, Section 8, Clause 1, but the entire Constitution. It is a sophomoric attempt to justify ends.
I read it three times; someone who gets doublespeak please tell me——- did he just say that Medicare is an unconstitutional special interest? and that it is not legal for them to charge a tax for it specifically and that under the Constitution tax money can not be earmarked for a specific purpose?
now I am even more afraid.
What I said – actually, what the framers said – is that the federal government can only legitimately exercise power, including taxing and spending money, in those areas the Constitution grants it authority to do so. All other powers remain with the state governments and the people. So, the question you need to answer for yourself is where there exists a grant of power in the Constitution for the federal government to create a health care reimbursement system like Medicare.
No, there is no such power.
precisely.
Paul Abram's commentary on the General Welfare Clause exemplifies the tendency of some bright people who are very knowledgeable about some things to assume that they therefore know everything else. I think it safe to say that he posted his blog after little, if any, research into the question. Previous controversies about the Clause and an explanation of its true meaning (taking into account a language change since the 18th century) appear in my 2003 article, "The General Welfare Clause and the Public Trust: An Essay in Original Understanding, available at http://constitution.i2i.org/sources-for-constitut…
google "Who Stole Your Social Security and Why?" Then you and I can can connect the dots and figure out that if and when the feds want to impress the people with gifts that come out of their pockets for their future then why are THEY stealing it away and then censoring the facts? When I was a child and my parents gave me a piggy bank to save for when I needed it (rainy day) my parents didn't come in and steal it away from me but if my parents ever would have at least they would have informed me of it and made a commitment to make good of what they has stolen. Our "PARTY"(s) have become living entities of their own and the party (either repubs or dems) have pulled the rug out from all of us in a great scheme to make us look bad in the face of their deceptive nobility. All of the money that has been stolen is predicated on lies, lies and more lies and how soon we forget and not mush of the truth is being displayed in our corporate owned MSM and it makes perfect sense in the world for the fat cats at the Federal Reserve to make sure that "we the people" have to borrow every red cent so as to make sure that all of the money that goes toward the "general welfare" of this nation as in social security etc has to be borrowed. "THEY" don't want any money laying around in a piggy bank that "we the people" use to protect our own interest because if the money isn't borrowed then they're not getting their cut = USURY!
"which goes to show an Ivy League education doesn’t necessarily guarantee a student will actually graduate knowing anything."
This is actually more common than one might think. I've worked for Deloitte & Touche with Ivy Leaguers there and had many Ivy League colleagues from various employers. While experience can and does make results based people out of many, most Ivy Leaguers, that I was exposed to, coming straight from college had a very striking behavior in common.
Brown Nosing. I guess Ivy League Schools have a modern day School of Machiavelli that prepares future Central Planners for the Modern day Court where gaining the favor of the Elite through disguised nuance and properly timed overt praise ensures one's place among the Elite after one's Nose is sufficiently Brown.
I was taught to work overtime and get the dam(n) job done. Not saying that all Ivy Leaguers displayed this expertise, just that it was in wide and varied use.
Abrams is a victim of never having to think a thought fully through. A quick search of how 'welfare' was used in the 18th Century shows the definition meant 'prosperity'. Even if one could not pinpoint the specific use, a slightly more rigorous effort of checking 'welfare's' meanings against the 'Liberty' and Limited Gov't context of the Constitution would deliver the Prosperity meaning as well. Abrams understanding is Feeble at best and at worse simply lazy. http://wp.me/pB8xR-6k
Too bad the Puffington Post closed comments on that piece. To define 'general welfare' as anything the fed wants to do is as dangerous any totalitarian Dictatorship.
There are two types of people in this world.
Fools
&
Educated Fools