In response to my recent essay, “The Tenth Amendment Prohibited the Living Constitution“, I received an e-mail which informed me that, ” the Constitution – gives Congress the power to make all laws necessary to execute its powers, including the power to provide for the general welfare, which has to include public health and safety.”
This is definitely a very common understanding, but is it correct? Does the congress have the power to make all laws necessary to execute its powers, including the power to provide for the general welfare?
Let’s start with Article 1, Section 8, clause 1 of the US Constitution, which says,
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;
In modern English, the first phrase in that clause might be paraphrased in one of two ways. First, by distributing the word power across each of the following phrases-
1.) The congress shall have the power to lay and collect taxes, duties, etc-, the power to pay the debts, the power to provide for the common defense, and the power to provide for the general welfare-.
Four powers all bundled into one clause. Or second, by inserting the clarifying text, “in order”-
2.) The congress shall have the power to lay and collect taxes, duties, etc- in order to pay the debts, provide for the common defense and the general welfare-.
In the first, the phrase “general welfare” is an expansion of power. In the second, it is a limit. Which one is correct?
One observation is that Article 1, Section 8, clause 1 is followed by 17 more clauses. All but the last of these detail a single, specific power. According to Hamilton in Federalist #33, the last one is merely a truism which added nothing to the grant of power. It would have been an odd construction, I think, for the framers to have granted four powers in the first clause, but only one per clause throughout the rest of the section.
Additionally, I would ask this rhetorical question (which is hardly original, though I don’t know where I heard it first); If Congress were simply authorized to do whatever is necessary and proper to promote the general welfare and common defense, then why would the drafters have bothered to write the rest of Article 1, section 8?
Further, think about this in the political context. The framers had come together to amend the Articles of Confederation, instead, they were proposing a whole new Constitution with an expanded set of powers for the central government. What power are people liable to be more suspicious of, than the power to tax? The framers knew that the citizens of their respective states were going to be uncomfortable with increased taxation from the central government, so it seems to me that they wrote this clause in a way to anticipate some of the questions.
Framers: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,
Citizens: What!?! Why!?!
Framers: to pay the Debts and provide for the common Defence and general Welfare of the United States
Citizens: I don’t think so. What if the the big states get control of this new government?
Framers: but all Duties, Imposts and Excises shall be uniform throughout the United States;
Citizens: Well, ok, I guess-
I think there might be a reason why this clause reads sort-of like a sales pitch.
From these observations, it already seems clear to me that the general welfare phrase was intended as a limit, consistent with the second paraphrase above. This point of view is bolstered by Federalist #41, where Madison writes,
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. (emphasis added)
Madison, so-called “Father of the Constitution”, apparently thought that our first paraphrase above is, “an absurdity”.
All of this ground has already been well worn and would probably not merit an article, by itself, but I would like to now draw the reader’s attention to, “AN ESSAY CONCERNING THE TRUE ORIGINAL, EXTENT AND END OF CIVIL GOVERNMENT”, by John Locke. I was prompted to review this essay by a Tenth Amendment Centerarticle this week. I haven’t yet read Locke’s whole essay, but in looking through it, I noticed that the phrases “public good” and “good of the people” are frequently used. These phrases sound quite similar to our phrase, “general welfare”. I haven’t searched for every use, but in a number of examples which I found, use of those phrases seemed to imply a limitation of power, not an expansion.
For example, in the Introductory section, Locke writes,
Sect. 3. POLITICAL POWER, then, I take to be a RIGHT of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good. (emphasis added)
And in another chapter (On the extent of legislative power),
First, They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court, and the country man at plough.
Secondly, These laws also ought to be designed for no other end ultimately, but the good of the people. (emphasis added)
I leave it as an exercise for the reader to conduct a text search on the entire document and see if those phrases can be found to expand power anywhere in the document. Given that the framers were said to have been heavily influenced by Locke, this adds weight to the argument that the phrase “general welfare” was intended to be a limitation, not an expansion of power.
Against this backdrop, I feel confident in concluding that,
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;
can only mean first that the congress has the power to lay and collect taxes, duties, imposts and excises; And second that this taxing power may only be executed only in order to pay the debts, provide for the common defense or to provide for the general welfare. It seems clear that Congress has not been granted an unlimited delegation of “the power to provide for the general welfare”.
For a scholar’s viewpoint on the words, “general welfare”, I would direct the reader to the Tenth Amendment Center’s Podcast on the topic with Rob Natelson. It should also be noted, as Natelson does in that podcast, that the power to spend is separate and independent from the power to tax.
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