General Welfare Clause

[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

Article I, Section 8, Clause 1 of the Constitution, the “general Welfare clause,” is often referred to as the “Taxing and Spending Clause” because of its expansive use today. Many people claim it gives the feds the authority to do anything imaginable as long as it “promotes the general welfare” – however one might define it. But this creates a dilemma. Either James Madison and other supporters of the Constitution were lying when they said the powers of the federal government would be “few and defined,” or people have misconstrued the legal meaning of this clause. The existence of enumerated powers resolves this dilemma. As Alexander Hamilton wrote 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.” James Madison reinforced this view in a letter to Henry Lee: “What think you of [Hamilton’s] commentary … on the terms ‘general welfare?’ The federal Govt. has been hitherto limited to the Specified powers… If not only the means, but the objects are unlimited, the parchment had better be thrown into the fire at once.” In a legal document, the enumeration of specific powers logically excludes all powers not listed. This is a legal maxim – Designato unius est exclusio alterius – meaning, “the designation of one is the exclusion of the other.” It follows from this construction that Congress has the authority to tax and spend for the general welfare, but the enumerated powers limit the federal government’s spending power to specific objects. As Rob Natelson put it in his paper, The General Welfare Clause and the Public Trust: “The clause was designed as a trust-style rule denying Congress authority to levy taxes for any but general, national purposes. Because the Clause prevented Congress from using tax revenue for local or special interest purposes, the Clause indirectly qualified the appropriation power. Even if some enumerated power could be enlisted to support the appropriation,317 federal tax money was not to be used for the private benefit of a museum-however worthy-in Savannah, nor an artist-however struggling-in New York.” To take the clause as a general grant of power for the federal government to do anything that promotes the general welfare would, as Madison put it, “would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

Thomas Jefferson

Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated.

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