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March 14, 2005

The Founders dis the modern view of 'general welfare'

"General welfare"? There's that phrase again. I do not think it means what you think it means."

—I. Montoya, noted political philosopher (paraphrased)

Article I, Section 8 of the U.S. Constitution begins thus (emphasis added):
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...
Today, the conventional wisdom among the political elite is that this clause expands Congressional power to the point where it is essentially limitless—that this clause gives Congress a blank check for meddling in every domain of state and local governments and of the people. But that is not the view of those who wrote the Constitution. James Madison considered this interpretation to be so absurd that he could not help but mock it:
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.
Years later, Thomas Jefferson (who was in Paris at the time of the convention but who remained in close contact with Madison and other key players) explained what was the clear understanding of those who composed the "general welfare" clause:

You will have learned that an act for internal improvement, after passing both Houses, was negatived by the President. The act was founded, avowedly, on the principle that the phrase in the Constitution which authorizes Congress 'to lay taxes, to pay the debts and provide for the general welfare,' was an extension of the powers specifically enumerated to whatever would promote the general welfare; and this, you know, was the Federal doctrine. Whereas our tenet ever was, and, indeed, it is almost the only landmark which now divides the Federalists and the Republicans, that Congress had not unlimited powers to provide for the general welfare, but was 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 meant that they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation on the purposes for which they may raise money.

—Thomas Jefferson, Letter to Albert Gallatin, 1817

Thus, providing for "the general welfare" was not in itself a power granted to Congress, but rather was a goal that would be realized through the exercise of the enumerated powers listed thereafter (this is also the plain meaning of the use of "general welfare" in the Preamble of the Constitution). With this understanding, it is clear that the federal government's taxing and spending authority was limited to the amount needed to properly exercise those enumerated powers. Levying taxes for any other purpose was—and is—illegitimate and unconstitutional.

But, just for the sake of argument let's suppose that my argument above is merely Radical Rightwing Revisionism, and that through the "general welfare" clause Congress has never had any meaningful boundary on its power. Jefferson came under a lot of criticism for so vehemently opposing the consolidation of government power that was already underway in the first quarter of the 19th century. Here's how he answered his critics (emphasis added):
I have been blamed for saying that a prevalence of the doctrine of consolidation would one day call for reformation or revolution. I answer by asking if a single State of the Union would have agreed to the Constitution had it given all powers to the General Government? If the whole opposition to it did not proceed from the jealousy and fear of every State of being subjected to the other States in matters merely its own? And if there is any reason to believe the States more disposed now than then to acquiesce in this general surrender of all their rights and powers to a consolidated government, one and undivided?
This is one of the most clear and convincing refutations of the modern interpretation of the "general welfare" clause—if it really means what the political elite insists it means, the Constitution would not have received a single ratification. End. Of. Argument.

Credits: The quotes above (save the first one) were found in Chapter 12 of Undermining the Constitution: A History of Lawless Government, by Thomas James Norton (1950). I've read only this chapter so far; it appears to be a worthwhile read. Thanks also to The Federalist Patriot for publishing the Madision quote that inspired this post.

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