If you ask somebody what constitutionally authorizes the federal government to take various actions to address the coronavirus, you generally won’t even get a direct answer.
People will tell you, “This is an emergency, the government has to act.” Of course, you won’t find an “emergency clause” in the Constitution that suspends the limits on federal power whenever some politician decides to invoke it.
If you press the issue, most people will jump to the general welfare clause. As one person put it, “The Constitution allows the government to pass laws for the general welfare.”
Yes, there is a general welfare clause. But it’s not a blank check. It does not grant blanket authority for the federal government to do anything it decides in its infinite wisdom is for the “general welfare.” The clause is limited by the delegated powers that follow.
The following excerpt from Constitution Owner’s Manual: The Real Constitution the Politicians Don’t Want You to Know About explains the original understanding of the general welfare clause.
When challenged on the federal government’s constitutional authority to create welfare programs, meddle in education or run a national healthcare system, federal supremacists will almost always appeal to the “general welfare clause.”
Huffington Post columnist Paul Abrams demonstrated this line of thinking in a March 9, 2011, piece.
“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 (sic); 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.”
Abrams’ assertion seems plausible. But is it? Does the general welfare clause really authorize the federal government unqualified and unlimited power to raise and spend money?
The simple answer is, “No!”
The term “general welfare” actually appears twice in the Constitution.
First, we find it in the preamble.
To put the phrase into context, we need to understand the legal force of a preamble. In a nutshell, it carries none.
As we discussed in chapter 6, a preamble in a legal document delegates no power and confers no authority. It describes generally the purpose of the instrument. In the case of the Constitution, it tells us the Union was established to accomplish the general purposes outlined. The preamble provides a basic framework through which we read the document, but it does not authorize the federal government to do anything. This is a progressive reading of the Constitution, but a lot of conservatives embrace it for their own purposes as well.
We also find the term “general welfare” in the opening line of Article I Sec. 8.
“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.”
Here the phrase actually carries legal weight. As a result, these words create something of a dilemma. Either the founders didn’t really intend to create a general government with limited powers, or the general welfare clause doesn’t really mean Congress has the authority to fund anything and everything it deems beneficial to the nation as a whole.
The fact that the framers followed up the general welfare clause in Article I Sec. 8 with a list of specific powers indicates the latter. The enumerated powers serve as a qualification [limitation] on federal authority to collect taxes for the general welfare. If the framers of the Constitution had intended for Congress to have the power to do virtually anything and everything to promote the “general welfare” however it defined the term, they wouldn’t have bothered to include a list of specific powers. They would have just stopped at the general welfare clause.
In fact, legal rules of construction dictate that when reading a legal document, the enumeration of certain powers logically excludes all other powers not listed. This is actually a legal maxim – Designato unius est exclusio alterius – meaning, “the designation of one is the exclusion of the other.”
James Madison made this very point in a letter to James Robertson dated April 20, 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.”
Broadly speaking, promoting the general welfare is a legitimate role of the federal government, but it can only do so within the scope of the specific powers delegated to it. Pro-ratification essayist “Cassius” wrote an article published in the Virginia Independent Chronicle addressed directly to Richard Henry Lee asserting that the general welfare clause was “not a power coextensive with every possible object of human legislation.”
“A moment’s calm reflection must have informed you, that no such legislative latitude is given to the house of representatives, except in the imposition of taxes, and in that branch, it must, necessarily, be intrusted, because the line could not be drawn. Congress can make no laws, except such, as are, essentially, necessary to carry into execution the particular powers given to them by the constitution.”
During the ratification debates, anti-federalists who opposed the Constitution voiced fears that people like our HuffPo columnist Abrams would come along and claim the term “general welfare” granted unlimited power to the federal government. Supporters of the Constitution swore it would not. Even Alexander Hamilton, arguably the founding father most in favor of expansive federal power, conceded as much in Federalist #83.
“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.”
Madison specifically addressed these anti-federalist fears in Federalist #41.
“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.”
Edmund Randolph was a delegate to the Philadelphia Convention. He initially refused to sign the Constitution. But Randolph later reversed course and became a supporter of ratification, playing a prominent role in the Virginia ratifying convention. During the debates, Randolph explained that the federal government could levy taxes for the general welfare and common defense. But he insisted Congress’s authority to spend those funds was limited by the enumerated powers that follow the general welfare clause. He asserted that any broader reading would “violate every rule of construction.”
“I appeal to the candor of the honorable gentleman [Patrick Henry], and if he thinks it an improper appeal, I ask the gentlemen here, whether there be a general, indefinite power of providing for the general welfare? The power is, ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare;’ so that they can only raise money by these means, in order to provide for the general welfare. No man who reads it can say it is general, as the honorable gentleman represents it. You must violate every rule of construction and common sense, if you sever it from the power of raising money, and annex it to any thing else, in order to make it that formidable power which it is represented to be.”
Randolph addressed this same argument at another point during the debates.
“But the rhetoric of the gentleman has highly colored the dangers of giving the general government an indefinite power of providing for the general welfare. I contend that no such power is given. They 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.’ Is this an independent, separate, substantive power, to provide for the general welfare of the United States? No, sir.”
In other words, the general welfare clause in Article 1, Sec. 8 empowers Congress to tax, but it doesn’t empower Congress to spend for anything and everything. The specific enumerated powers that follow limit the federal government’s spending power to specific objects.
Madison further illuminated the intent of the general welfare clause in a letter to Edmund Pendleton dated Jan. 21, 1792, pointing out that the phrase was lifted from the Articles of Confederation and was intended to retain its meaning in the new Constitution.
“I have reserved for you a copy of the Report of the Secretary of the Treasury on Manufactures for which I hoped to have found before this a private conveyance, it being rather bulky for the mail. 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 & 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.”
Clearly, the words “general welfare” must mean something other than a grant of power for Congress to do whatever it pleases. What exactly did the framers mean?
Two words in the clause hold the key. General and common. The phrase simply means that any taxes levied must be collected to the benefit of the United States as a whole, not for partial or sectional (i.e. special) interests. The federal government may promote the general welfare, or common good, but it must do so within the scope of the powers delegated and without favoritism.
It’s clear when reading the record of the ratification debates and taking into account legal rules of construction that Paul Abrams and his fellow federal supremacists are dead wrong about the general welfare clause.