The “General Welfare” clause
Article I, Section 8 of the Constitution
The 10th Amendment to the Constitution
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
– Preamble to the U.S. Constitution.
This posting covers many areas spanning from the original institution through the beginning of the subversion of the US Constitution and the Bill of Rights. This document relies on vetted on-line information, books, and other available materials from institutes of higher education. Credit will be given to the best of the ability of this writer. Spelling will contain the spelling of the time of publication. I can only hope this post can lead to further discussion of the subject matter.
Article 1 [Legislative Branch] Section 8 [Powers of Congress] of the US Constitution defines what the enumerated duties of the Federal Government are while Amendment 10 [ratified December 15, 1791], which is also known as the States’ Rights Amendment, reinforces what is inside and outside the purview of the Federal government. The Constitution was written and ratified to both authorize and limit the powers of the Federal government listing those enumerated duties which, in part, were reaffirmed with the Tenth amendment of the Bill of Rights two years later.
Renderings of the exact enumerated duties are commonplace in the age of the internet; however, this post will look at what the men who wrote the Constitution had to say about the Constitution in general and the “general welfare clause” in particular. James Madison, the father of the Constitution, said, “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 …” Madison also said, “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.” Reiterating, Thomas Jefferson said, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
Reaffirmation comes as part of the Bill of Rights, and in particular, the 10th Amendment which embodies the general principles of Federalism in a republican form of government. The Constitution specifies the parameters of authority that may be exercised by the three branches of the federal government: executive, legislative, and judicial while the Tenth Amendment reserves to the states all powers that are not granted to the federal government by the Constitution, except for those powers that states are constitutionally forbidden from exercising.
With consideration that the Framers were wary of a centralized government, they created a novel system of mixed sovereignty between duties of the national (Federal) government and those of the States. Noted in The Federalist No. 39, the new government was “in strictness, neither a national nor a federal Constitution, but a composition of both.” Critical to this system was the enumerated federal powers, which allows the federal government to operate only within defined areas where the States individually could not. Federalist No. 33 states that a congressional act beyond its enumerated powers is “merely [an] act of usurpation” which “deserves to be treated as such.” Additionally, in Federalist No. 45, Madison explained: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
Governments control people–constitutions control governments
Article I of the Constitution elaborates the most careful delineation of powers and principles of representation. The list of legislative powers in Article I, Section 8 serves as a template by which we may assess the charges against the King. This same pattern is evinced in the Bill of Rights, which opens with the powerful stricture, “Congress shall make no law…” One needs to look no further than President Lincoln who referred to the Constitution and the Bill of Rights as “An Apple of Gold In a Silver Frame.” Additionally, the Tenth Amendment reserves to the states all powers that are not granted to the federal government by the Constitution, except for those powers that states are constitutionally forbidden from exercising.
With the many writings and comments of the Founders one can realize the general substance with respect towards the federal government was one not one of ever expansive powers but rather one of restriction on both power and scope. The federal government was one not one of ever expansive powers but rather one of restriction on both power and scope. According to James Madison, the clause authorized Congress to spend money, but only to carry out the powers and duties specifically enumerated in the subsequent clauses of Article I, Section 8, and elsewhere in the Constitution, not to meet the seemingly infinite needs of the general welfare.
For example, nowhere in the federal Constitution is Congress given authority to regulate local matters concerning the health, safety, and morality of state residents. Known as ‘Police Powers’, such authority is reserved to the States under the Tenth Amendment. Conversely, no State may enter into a treaty with a foreign government because such agreements are prohibited by the plain language of Article I to the Constitution.
On the subject of plain language, one must review the language structure as another aid in deciphering the original intent of this clause. Perhaps no phrase found in the Constitution has been more distorted in actual use and application than the provision that one broad purpose of our government is to promote the general welfare throughout the United States. To quickly dismiss the grammatical naysayers; this can be quickly answered by many sites like ”Understanding the Constitution”, and “What Does the General Welfare Clause Really Mean?” or many others. What one will find is that our Founders only listed the enumerated duties and “General Welfare” was not one of them. The rest of this post will point towards the Founder’s vision and not one of the Progressive’s convoluted view towards redistribution of wealth and property in this modern era.
Where does this leave us—the current occupants of America? One needs to review the history ‘of us’ to understand. What happened? Starting with Woodrow Wilson and his transformation of Constitutional Law into the study Supreme Court opinions (Constitutional Law v. Case Law) destroyed Constitutional Law as we knew it. The second great push of Socialism came, in particular, under FDR (Franklin D. Roosevelt), with the country coming out of a government-imposed depression (1935), his request for extraordinary “powers similar to those necessary in time of war”, and poorly crafted legislation–we, as a nation, ended up with 8 of 10 rebukes of the “New Deal” legislation as unconstitutional; however, as FDR stated “we have therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself.”
Revolution of 1937
Constitutional historians refer to what happened next as the “Revolution of 1937.” The President proposed that for each sitting justice over the age of seventy there be appointed one new Justice to “help them with their case load.” In reality, FDR wanted to pack the court with six additional justices willing to declare all of his “must legislation” Constitutional. What was about to happen would ultimately lead our country to the clear and present danger of economic insolvency. The Supreme Court at the time consisted of four conservatives, three liberals, one moderate, and one swing.
With the “packed” Federal courts, we have United States v. Butler (1936) and Helvering v. Davis (1937). In Butler, the Court struck down the Agricultural Adjustment Act, which taxed processors in order to pay farmers to reduce production. Although invalidating the statute, the Court adopted the Hamiltonian view (almost in passing) that the General Welfare Clause is a separate grant of congressional authority, linked to and qualified by the spending power.
Any doubt remaining after Butler as to the scope of the General Welfare Clause was dispelled a year later in Helvering. There the Court defended the constitutionality of the 1935 Social Security Act, requiring only that welfare spending be for the common benefit as distinguished from some mere local purpose. Justice Benjamin Cardozo summed up what has become controlling doctrine ever since: “Nor is the concept of the general welfare static…. What is critical or urgent changes with the times.”
Nevertheless, the American population was forced into a Ponzi scheme called Social Security and an equally reprehensible health care system forever dividing classes of people known as Medicare and Medicaid. Not to mention what affronts the population today. Following FDR, we have Lyndon Baines Johnson (LBJ) with the “War on Poverty”, and the continuing onslaught of other Progressive schemes. This takes us to 1969 and the additional misconceptions pushed forward by the Liberals and Progressives ever since. The one thing you will note is none of these were won in a fair contest but always after ramming through the unpopular under a guise of “People’s needs”, “the War on Poverty”, or something else sounding noble with socialist intents.
In Closing I have two quotes for the readers to contemplate before response:
Former slave Frederick Douglass advised: “Find out just what people will submit to and you have found out the exact amount of injustice and wrong which will be imposed upon them. … The limits of tyrants are prescribed by the endurance of those whom they oppress.”
‘If you compare the vision of our nation’s founders to the behavior of today’s Congress, White House and U.S. Supreme Court, you would have to conclude that there is no longer rule of law where there is a set of general rules applicable to all persons. Today, we are commanded by legislative thugs who, with Supreme Court sanction, issue orders commanding particular people to do particular things. Most Americans neither understand nor appreciate the spirit and letter of the Constitution and accept Congress’ arbitrary orders and privileges based upon status.’
–Walter E. Williams