General Welfare Clause

Overview of the General Welfare Clause

In Federalist 41, James Madison said it would be an “absurdity” to construe the words, “general welfare” in the opening clause of Article 1, Section 8 (which were carried over from the Articles of Confederation) as an open ended grant of power, separate and distinct from the Enumerated Powers that followed.

General Welfare Clause

General Welfare Clause

“For what purpose,” Madison asked, “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.” In short, the words, “general welfare” in the opening clause that precedes the Enumerated Powers serve merely to explain and qualify the enumeration that follows. In theory, the exercise of any Enumerated Power by Congress was supposed to be in the interests of the “general welfare”, rather than the interests of any particular welfare or special interest. In addition, “general welfare” was supposed to mean federal legislation must benefit the general welfare of the entire country, rather than benefit a particular region or locality at the expense of other regions. Accordingly, the General Welfare clause is merely another restraint on federal power and cannot reasonably be construed as an independent grant of federal power.

From a logical standpoint, if the General Welfare clause were an open ended grant of power to the federal government, then why would the people who drafted the Constitution, and the people in the state ratifying conventions, have carefully debated and enumerated the powers listed in the rest of Article 1, Section 8? Those powers would be superfluous and unnecessary. When interpreting contracts or other legal agreements, proper construction and interpretation requires the contract to be interpreted in a logical and consistent matter. No one part of the agreement can be interpreted so as to make another part of the contract illogical or unnecessary.

Thomas Jefferson’s protest against the constitutionality of the First Bank of the United States affirms this basic idea. According to Jefferson, “To consider the [phrase “to provide for the general welfare”], not as describing the purpose of the [power “To lay taxes”], but as giving a distinct and independent power to do any act [Congress] please which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. 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 pleased. It is an established rule of construction, where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which will render all the others useless. Certainly no such universal power was meant to be given [Congress]. It was intended to lace [Congress] up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect.”

Today, these opinions of Madison and Jefferson are largely ignored. Acceptable modern political thought does not allow for views that would limit federal power. However, any informed person with a shred of intellectual integrity would acknowledge that the general welfare clause is not and cannot be an independent and open-ended grant of federal legislative power.

General Welfare Clause Example – Social Security

General Welfare

General Welfare

It is worth mentioning the United States Supreme Court deemed many “social welfare” programs, including the Social Security Act of 1935, “constitutional” on the grounds the act was a permissible exercise of the federal power to spend for the “general welfare” under the General Welfare clause. See Helvering v. Davis (1937). Those who advocate an unlimited, unconstitutional, centralized government refer to the General Welfare Clause as the, “Spending Power.”

Whether Social Security and other federal “social welfare” programs should exist is a separate question. From the standpoint of the logic and the plain meaning of the Constitution, these programs are undoubtedly illegal and unconstitutional. If Americans wanted the federal government to create a social welfare system like Social Security, a Constitutional Amendment should have been passed by Congress and ratified by the states (pursuant to Article 5) to make that exercise of federal power constitutional and legitimate. But why ask for a Constitutional amendment to grant a new power when you can commandeer the courts to “interpret” away all legislative restraints on federal power? A cynic might conclude this was the intended purpose of the New Deal all along.

United States Constitution – 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;