Thomas Jefferson rejected the “anything and everything” view of the general welfare clause that so many hold today.

Conventional wisdom holds that the Constitution’s “general welfare” clause authorizes the federal government to do anything and everything imaginable, as long as it somehow relates to an undefined conception of “national common good.”

But supporters of the Constitution during ratification insisted that the general government would only exercise a very limited number of powers. As James Madison put it in Federalist #45, federal powers are “few and defined.”  So, how can we reconcile the popular “anything and everything” conception of the general welfare clause and the ratification era promise of limited federal power?

Quite simply, we can’t, as Thomas Jefferson argued during the debate over the establishment of a national bank in 1791.

Jefferson fiercely opposed the formation of a national bank on constitutional grounds. He wrote, “The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution.”

Some proponents of the bank claimed the general welfare clause authorized the creation of a bank. After all, it would benefit the entire United States and advance the general welfare of the union. Jefferson saw the writing on the wall and recognized that if this argument won the day, it would drastically expand the scope and power of the federal government. Jefferson warned that the establishment of a national bank on this basis would enable Congress to “take possession of a boundless field of power” which would give it the means “to do whatever evil they please.”

But Jefferson didn’t base his argument on mere hyperbolic assertions. He offered a detailed breakdown of the general welfare clause showing that it does not constitute a broad grant of authority to the federal government.

We find the general welfare clause in Article 1 Sec. 8. It reads:

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.” [Emphasis added]

Jefferson first rephrased the clause to emphasize its intended meaning.

“‘To lay taxes for the purpose of providing for the general welfare.’ For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised.”

In other words, the general welfare clause actually limits the scope of federal taxation. Congress may only lay taxes for purposes related to the general welfare of the Union. It can’t levy taxes for any purpose under the sun. It can’t tax for the benefit of a particular region, industry or special interest. As Jefferson put it:

“They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union.”

This still leaves a lot of wiggle room. One can imagine all kinds of things that might fall under the category of “general welfare,” including the formation of a national bank. But Jefferson pointed out that the authority to tax does not assume the authority to spend. In other words, the federal government can lay taxes for the general welfare, but it cannot spend that revenue however it pleases. The Constitution limits what the general government can do to promote the general welfare to the specifically enumerated powers that follow in Article 1 Sec. 8.

“…they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.”

Here Jefferson alludes to legal maxim – Designato unius est exclusio alterius – meaning, “the designation of one is the exclusion of the other.” When reading a legal document, the enumeration of certain powers logically excludes all powers not listed. James Madison made this same point in a letter to James Robertson in 1831.

“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.”

So, the general welfare clause empowers the federal government to levy taxes only for the “general welfare,” not for the benefit of a particular region or special interest, and the enumerated powers that follow limit how Congress may act to promote the general welfare to the specific actions listed.

Alexander Hamilton was the most vocal proponent of a national bank, but ironically, even he argued for this limited view of the general welfare clause during the ratification debates. In Federalist #83, he wrote:

“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.”

If we embrace the expansive reading of the general welfare clause advanced by proponents of the national bank and so popular today, we fundamentally change the nature of the Constitution. In a letter to Edmund Pendleton, Madison wrote that he considered this “anything and everything imaginable” view of the general welfare clause as “subverting the fundamental and characteristic principle of the Government.”

“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.”

Jefferson said this drastic expansion of federal authority would ultimately empower the government to do whatever evil it pleased.

“It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.”

Mike Maharrey

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