Paul Abrams trotted out one of the favorite progressive arguments for virtually unlimited federal power in a March 9  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.”

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.”

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 observed”

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.

Any honest reading of the US Constitution gives the impression that the Federal Government is but a lackey to the states. However, when it comes to the way it has been interpreted (incorrectly), there are three clauses which are widely cited as authority to usurp power which belongs elsewhere. In this article, I intend to delve into these and examine how they are true or false. I also intend to highlight the impact that the abuse/use of these clauses has had.

Commerce Clause

Article I Section8 Clause3 of the Constitution states that Congress has the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This obviously means Congress has the right to regulate how much grain you can grow on your land for your own consumption, right? If you said no it does not (like any other thinking person), you are out of step with the US Supreme Court. This also means that the Congress can force you to purchase health insurance, right? If you said no, you are out of step with the Congress. Surely the Commerce clause means that if a migratory bird (that is hunted in another state) lands on your property, then your property can be seized by the Federal Govt. due to it’s part in interstate commerce right? No?

How about this one; The Federal Government can make gun laws (in direct contravention of the US Constitution) because they are sold over state lines. Obviously the ambiguous verbiage above allows them the authority to ignore the clearly unambiguous verbiage of “shall not be infringed,” right?

Well, there is the Government’s case, now how about the governed? For our case I will focus on some quotes from the founders:

How about that James Madison (the acknowledged father of the Constitution)?

It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.

So… the way I read James Madison here is that the Commerce clause is to keep the states themselves from interfering with commerce (laying tariffs between states, placing restrictions on imports, etc…). It seems that Madison did not want the Federal Government using the Commerce clause to control… well.. everything.

How about Thomas Jefferson? Here is the quote I found from him-

“[The commerce clause] does not extend to the internal regulation of the commerce of a State (that is to say, of the commerce between citizen and citizen) … but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.”

Hmmm… I think Thomas Jefferson agreed with me. The Commerce clause was intended only to regulate resale.

In fact, the federalist papers used the term “commerce” dozens of times, and they all amounted to the resale of things by merchants and shippers, not one time did it mean growing of agriculture or manufacturing of products for sale. If this context was examined, then this would be the original intent of the Constitution.

Necessary And Proper Clause

Article I Section8 Clause18 states that Congress has the power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Most school children are taught that this clause was added so that Congress could legislate on issues that would come with new inventions. (My teacher used to say that there were no autos in 1789, so they needed to put this clause in).

Surely this clause means that Congress can make any law they want, right? The problem with this view is that at the end of this clause the Constitution clearly limits the power to making laws necessary to carry out the other laws in the Constitution. In other words, Congress has the power to raise and support a navy, so they have the power to train sailors and commission ships.

These powers are referred to as “incidental powers.” They must be smaller than the power they are used in conjunction with. That is, they may regulate interstate commerce, but may not regulate state governments or laws.

Some examples of “necessary and proper” overreach are:

In 1896, it was ruled that it was legal for the Federal Government to condemn a railroads property to build a national park on the basis that it was necessary to the national defense that the citizens are proud of their country.

Now, I love my country as much as anyone else alive, however, I love the freedoms more than the national park, and this just illustrates what freedoms we do not have. The necessary and proper clause was also used to justify the national bank as necessary to conduct the borrowing and national defense powers of Congress. But lets look at some other input:

Joseph Story (an early Supreme Court Justice) said-

“The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant.”

This about spells it out. The debate for McCullough Vs. Maryland is another source for quotes from Hamilton, Madison and Jefferson.

General Welfare Clause

To promote or to provide for the general welfare, appears in two places in the US Constitution;

First in the preamble, which is just a listing of reasons and gives no powers whatsoever, and then Article I Section8 Clause 1 where it states:

“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;”

Does this clause mean that Congress has no limits except what they believe will advance the “general welfare?” Is it just the Supreme Court which determines the general welfare, but the federal government may do anything that the court does not forbid? This is the primary opinion of the elite and the elected. It has been used to justify welfare, Medicare, Social Security, Medicaid, and a host of freedom-destroying legislation. But what did the founders think of this?

Take James Madison-

“If Congress can employ 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 appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress… Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”

or this one:

“With respect to the 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.”

Or this one from Thomas Jefferson

“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”

In reality, the “General welfare” clause is a qualifier. Congress may only lay taxes for revenue to be used for the general welfare (as opposed to the special welfare) of the states, for example, they may lay taxes to build postal roads, but they may not lay taxes for building postal roads in New Hampshire, to the detriment of the rest of the states. So, ironically, the way that Congress horse-trades favors for votes in Congress makes most legislation unconstitutional.

There’s More

In addition to these gross misconceptions by the Federal Govt., they add the Supremacy clause, which states:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith-standing.”

This is pointed to anytime the Federal Government wants to escape criticism from people saying they have exceeded their authority. However, a careful reading of the passage above makes it clear that only laws in pursuance of the US Constitution are supreme. Anytime the Federal Govt. goes beyond the Constitution, citizens are not bound to obey them.

The preceding examples of intentional misconstruction of the Constitution are examples of our Federal Government out of control. They pit the citizens against each other; they take from the hand of labor to give to the hand of not only the needy, but the banks and corporations as well.

They make people perpetual slaves by addicting them to handouts and then denying them the escape from this perpetual misery by over-regulating prospective employers for these people. They have bogged us down in perpetual wars overseas for over a period of 70 years, ignoring the appropriate method of war-making under the Constitution.

They have criminalized multiple forms of commerce, suspended Habeas corpus in absence of properly declared wars, and they have systematically denied due process rights for the people.

Indeed, this list could go on for pages. Most of these transgressions against the natural rights of man are done in the name of the good intentions (saving people from themselves). These need to end, and our country needs to return to the republican form of government it was founded on. Our states need to resume pushing back at the Federal Government and interposing on our behalf.

Tim Reeves is an 11 year veteran of the U.S Navy, and is now an engineer, He grew up in Michigan, but has resided in the Pacific NW since 1992. He’s the State Chapter Coordinator for the Oregon Tenth Amendment Center.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

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.

Mentioned in this Show

Federalist #41

United States v Butler

Korematsu v. United States

More from Rob Natelson:

Are Campaign Finance Laws Constitutional?

Is ObamaCare Constitutional?

Claiming Almost Everything is “Commerce”

Here’s a few observations:

1. Turley is absolutely correct that “decades of precedent” in the courts oppose the view that the federal government is not authorized to enact a national health care plan. But, what he fails to point out, is that under the original meaning, intention and understanding of the Constitution – these kinds of powers would have been unthinkable. The court is, in plain English, wrong. Learn more here.

2. Neither the host nor Turley seem to have any clue about nullification – or its current efforts. Nullification has nothing to do with getting a positive ruling from the Supreme Court. It’s when a state passes a law simply refusing to implement a federal law. In fact, it has a long history in the American tradition. It’s been used to resist laws against free speech, fugitive slave laws, the use of the militia in war and more. Hardly “right-wing” at all. Learn more here.

3. Nullification has also been used quite recently – and effectively too. Approximately two-dozen states refused to implement the Bush-era Real ID act. And guess what – the courts aren’t needed, and neither is Congress. The law is a dead letter. Null and void.

4. Oh, and that pesky general Welfare clause. It doesn’t mean what they’re implying – at all. In fact, it was meant as a strict limitation on power. Here’s what James Madison had to say about it – “With respect to the 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.”

If my choice is the opinion of James Madision vs Jonathan Turley, I think I’m safe going with Madison.

Here’s what I think is most important…What both Olberman’s stand-in and Professor Turley get wrong is this – the 10th Amendment Movement is not about asking politicians to follow the Constitution. It’s not about getting permission from the Supreme Court to exercise our rights. It’s not about going to the federal government at all. Those are all failed strategies.

This movement is about moving back towards Constitutional governance whether they want us to or not.

Whether it’s 20+ states nullifying real ID, or 2 states nullifying some federal gun regulations, or 13 states nullifying federal marijuana laws, or states nullifying a national health care plan, this is about state-level activism. And, if enough states do it, the feds can’t do anything to stop it.

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.

Conclusion

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.

Bob Greenslade [send him email] is a regular participant in Tenth Amendment Center comments and has been writing for  http://www.thepriceofliberty.org since 2003.

For far too long, Congress has been violating the Constitution by passing legislation that gives them powers that were never authorized by the Constitution. In every case, those powers represent rights that were intended to be reserved to the states and to the people.

How has Congress committed these grievous violations and gotten away with it? By claiming that “to provide for the common defense and general welfare” is an enumerated power granted to Congress under Article 1, Section 8 of the Constitution. It is not. It is a general statement describing the section content and justifying the need to levy taxes.

“The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;”

If “[to] provide for the general welfare” were intended to be an enumerated power, just that one statement alone would render the rest of the article unnecessary. It would allow Congress to do whatever it wanted, so long as it could be explained as being for the general welfare of the country. The framers’ intent in writing the Constitution was to limit the power of government, not to grant it unlimited power.

The belief by some – that providing for the general welfare is an enumerated power – goes against everything the framers of the Constitution intended. It would completely undermine the foundation of limited government and the intent of the framers to retain as much power as possible to the states and to the people.

The framers knew the dangers of concentrating too much power in a big, central government and so they made that clear with the adoption of the 10^th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This amendment specifically states that all powers not specifically granted to the federal government shall be reserved to the states and to the people. There are no such restrictions on the states. The states are free to make laws and spend their state taxpayers’ money any way they choose within their respective constitutions, providing they do not violate laws already defined by the U.S. Constitution.

This is why such things as health, welfare and education were historically regulated and financed by the states and local governments, until recently. There is no mandate in the U.S. Constitution to provide for federal tax money to be spent on health, welfare and education. There is also no mandate in the Constitution for federal tax money to be given to companies engaged in alternative energy development, or given to anyone else including gifts as foreign aid.

Article 1, Section 8 describes the things that Congress is authorized to spend tax money on. The government cannot operate without tax money, so the framers listed, item by item, those things that Congress is empowered to use tax money for.

If [to provide for] “the general welfare” were an enumerated power, then so would be “to provide for the common defense.” If this clause were an enumerated power also, then that would be all that would be necessary for Congress to create and regulate an army, navy, and other divisions needed for the national defense.

Therefore, there would be no need to specify the powers to create and maintain armies and navies in the sentences that follow.

“To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;”

Why would the above items even have to be mentioned if “to provide for the common defense” in the first statement was an enumerated power? The powers to provide for “the common defense” are specified in the above 6 sentences.

Providing for “the general welfare” includes the following enumerated powers:

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.”

“The general welfare” and “the common defense” are general terms used in a preamble that refer to the itemized powers that follow them. They are not enumerated powers. The enumerated power in the first sentence is “taxation”, ie: the power to lay and collect taxes, duties, imposts and excises [for the purpose of] providing for the common defense and general welfare of the United States.

Notice what follows the common defense and general welfare clause:

“but all duties, imposts and excises shall be uniform throughout the United States;”

It doesn’t say “but all duties, imposts and excises, common defense and general welfare, shall be uniform throughout the United States.” It refers specifically to the power of taxation at the beginning of the statement. Taxation is what this statement is all about. It is not about granting broad powers to Congress to do whatever they want as long as they call it “for the general welfare of the country.”

The final statement in Section 8 grants Congress the power to make laws necessary to enforce and execute the powers granted above.

“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

This means just what it says; that Congress is empowered to make laws necessary to execute the powers granted above, and all articles and amendments contained within the Constitution. Therefore, any law made by Congress should comply, and be justified by the articles specified in the Constitution. That is to say, that any law made by Congress must be necessary in order to comply with the enumerated powers assigned to them.

For Example; since Congress has the power to use tax money to build roads, it will then be necessary to also make laws to authorize the installation of road signs and traffic control on interstate highways. Or to operate a postal service it will be necessary to have laws to regulate that department.

You might be wondering how the government can do everything it has to do and meet the needs of the people with so few powers granted to Congress. The answer is it was never intended to do that. The Constitution leaves those powers to the states and grants the federal government only the powers necessary to deal with foreign and interstate affairs. The federal government has no constitutional authority to regulate domestic affairs that affect the free will, or the progress of society. It has no constitutional authority to interfere in the affairs of the people, except where explicitly enumerated in the Constitution.

The use of federal tax money is authorized by the Constitution to support federal government functions and nothing else! Without these constitutional limits on federal government, there would be no limit to tax increases on the citizens and federal regulation of every aspect of our lives – much as we are seeing today. There would be little or no use for individual states.

In Article 1, Section 9, we find this:

No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.

Congress is continually passing laws to spend money because of this requirement. But what we should be asking is – are those laws in compliance with Article 8? Are the expenditures authorized by one or more enumerations of power contained in the Constitution? Are they necessary to carry out government functions? If not, then they are unconstitutional and illegal, and Congress is guilty of abuse and misuse of taxpayers’ money.

Politicians today have found ways to tax everything we do and are still looking for more sources of tax money, to provide themselves with all the money they need to do whatever they want to do, without regard for the limitations placed on them by the Constitution. Isn’t it time we take back our country from corrupt politicians who, for decades, have been stealing our freedom and liberties, and constitutional rights, to say nothing of our money? What we have today is not the limited government that the framers intended in the Constitution.

Corruption and disregard for the Constitution has become the status quo in Congress. It has become acceptable practice by most politicians, therefore they are rarely called on it by others. Politicians in Congress have gotten used to the idea that their job is to provide for the general welfare of the people by any means necessary.

By assuming that the general welfare clause is an enumeration of power, they have turned our federal government into exactly what the founders of the country and the framers of the Constitution tried to prevent when they crafted the document and in doing so, have stolen the rights and freedom of the individual states and those of the people. Only by electing those who show a willingness to restore the limits placed on government by the Constitution, can these injustices be corrected.

Colin and Connor Clark contributed to this article with my thanks.

JR Dieckmann [send him email] is the editor of GreatAmericanJournal.com

A year after warning America of its addiction to oil, President Bush is expected to renew concerns about energy security in his State of the Union address.

More…

Energy Secretary Samuel Bodman says the administration over the years has spent nearly $12 billion in developing new energy technologies. He cited the president’s $2.1 billion “advanced energy initiative” in the State of the Union a year ago.

The powers of the federal government are limited to only those specifically delegated to it by the Constitution. Those powers, under any circumstance, can not be expanded constitutionally by the government, no matter how worthy the cause.

Like police powers, most energy authority is based in the states.

As the Supreme Court recently affirmed in United States vs. Lopez, the Constitution establishes a federal government of enumerated, and thus, limited powers.

Nowhere in the Constitution is the federal government authorized to “achieve energy efficiency or diversity.” Other than the specific power of the federal government over federal territory, any power in those locations to regulate environmental affairs belongs to the states, as the 10th Amendment makes clear.

An accurate reading of the Constitution, therefore, brings much of the Department of Energy’s authority into doubt. Arguments based on the General Welfare clause to justify its actions are quite unfounded.

The General Welfare clause is not properly defined as allowing the federal government to do anything it wants to as long as Congress and the President thinks it’s for a common “good.” If this was the case, the founders wouldn’t have wasted their time writing the Constitution with a list of specifically enumerated powers in the first place!

As many of the founding fathers made quite clear, the General Welfare Clause was meant to confine the exercise of enumerated powers in the Constitution. It was not meant to be, of itself, the source for unlimited power for the government to care for the “common good.”

Consider these statements:

“Our tenet ever was… that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.”
–Thomas Jefferson

“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

As for oil, and energy “policy” in general, the President’s proposals are absurd. Central planners in the DOE are to tell us what technologies are best for the nation, have the greatest promise, etc. Then, they start spending taxpayers’ money to determine if they can do a better job than markets in developing alternatives to oil. Our continued dependence on oil, coal, and the like, should make it quite clear that such central planning has done nothing more than prevent new technologies from emerging and becoming viable.

If the central government would’ve followed the 10th Amendment, and kept its hands out of energy decades ago, we might be in a much better situation than we are today.