Congress should:
- start with first principles: "The Constitution creates a Federal Government of enumerated powers."
- interpret the "General Welfare" clauses in terms of this principle.
Government in a Free Enterprise Society
In a recent Saturday Morning Presidential Address, President Bush said:
Our free enterprise system rests on the conviction that the Federal government should intervene in the marketplace only when necessary.
This principle holds true on the state level as well as the federal level: the government of the State of Missouri should not run farms, gas stations, or grocery stores, competing against private farms and grocery stores. It is not necessary for "the government" to grow and sell food or pump gas. Suppose horoscopes become very unpopular, and no newspapers carry them anymore. Suppose, in fact, that there is only one person in the United States who wants to read a horoscope. This person complains to the government that the private sector is not providing horoscopes, and therefore the government should levy a horoscope tax to revive the flagging horoscope industry, create high-paying horoscope jobs, "stimulate the economy," and thereby "save capitalism from itself." Most
people would disagree with this thinking, not just because they don't believe in horoscopes, but because they would see that this government program only benefits a "special interest," not the "general welfare." But grocery stores do benefit everyone. Shouldn't the government run the grocery stores in order to "promote the general welfare?" Not a single person who signed the Constitution would say that this was a proper use of the Constitution.
The "General Welfare" Clauses These clauses have been recruited to defend government spending on projects the Signers of the Constitution would never have dreamed of funding with taxpayers' money. Let's look at the clauses, then look at them in context. The Preamble to the Constitution says:
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.
Article I of the Constitution creates the legislative branch, and begins with these words:
Section 8.
1: 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;
Section 8 is important. It lists all of Congress' powers. These enumerated powers are the only powers "We the People" delegated to the new government.
The Concept of "Enumerated Powers"
The Federal Government only has the powers which "We the People" delegated to it in the Constitution. The New American Magazine listed all of the enumerated powers and duties of Congress. That list, which should be at the fingertips of every congressman, follows.
• Levy taxes.
• Borrow money on the credit of the United States.
• Spend.
• Pay the federal debts.
• Conduct tribunals inferior to the Supreme Court.
• Declare war.
• Raise armies, a navy, and provide for the common defense.
• Introduce constitutional amendments and choose the mode of ratification.
• Call a convention on the application of two-thirds of the states.
• Regulate interstate and foreign commerce.
• Coin money.
• Regulate (standardize) the value of currency.
• Regulate patents and copyrights.
• Establish federal courts lower than the Supreme Court.
• Limit the appellate jurisdiction of the federal courts, including the Supreme Court.
• Standardize weights and measures.
• Establish uniform times for elections.
• Control the postal system.
• Establish laws governing citizenship.
• Make its own rules and discipline its own members.
• Provide for the
punishment of counterfeiting, piracy, treason, and other federal crimes.
• Exercise exclusive jurisdiction over the District of Columbia.
• Establish bankruptcy laws.
• Override presidential vetoes.
• Oversee all federal property and possessions.
• Fill a vacancy in the Presidency in cases of death or inability.
• Receive electoral votes for the Presidency.
• Keep and publish a journal of its proceedings.
• Conduct a census every ten years
• Approve treaties, Cabinet-level appointments, and appointments to the Supreme Court (Senate only).
• Impeach (House only) and try (Senate only) federal officers.
• Initiate all bills for raising revenue (House only).
The federal government was not given power over Education, Healthcare, Charity, Employment Practices, or Alcohol, Tobacco and Firearms. TNA adds,
These are the powers of Congress; there are no non-enumerated powers. Leaving nothing to inference, the Constitution even specifies that Congress may pass the laws “necessary and proper” for executing its specified powers. Congressmen have simply to study and apply the Constitution in order to restore sound government. That most fail to do so is not the fault of the Founders, but of the people who elect the congressmen and send them to Washington.
Basic Constitutional Theory
John C. Eastman writes in “A Fistful of Denial: The Supreme Court Takes a Pass on Commerce Clause Challenges to Environmental Laws,”
- [1] The Declaration of Independence
- [2] See, e.g., The Federalist No. 39, where James Madison noted that the jurisdiction of the federal government ‘‘extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects’’; See also The Federalist No. 45 (James Madison) (‘‘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.’’); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (Marshall, C.J.) (‘‘We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended.’’); Gregory v. Ashcroft, 501 U.S. 452,457 (1991) (‘‘The Constitution created a Federal Government of limited powers.’’).
- [3] See U.S. Const. amend. X (‘‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’’).
- [4] U.S. Const. art. I, § 1 (emphasis added); see also U.S. Const. art. I, § 8 (enumerating powers so granted); McCulloch, 17 U.S. (4 Wheat.) at 405 (‘‘This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, . . . is now universally admitted.’’); United States v. Lopez, 514 U.S. 549, 552 (1995) (‘‘We start with first principles. The Constitution creates a Federal Government of enumerated powers.’’).
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The Framers added their own contribution to the science of politics. In what can only be described as a radical break with past practice, they rejected the idea that the government was sovereign and indivisible. Instead, they contended that the people themselves were the ultimate sovereign; they could delegate all or part of their sovereign powers to a single government or to multiple governments as, in their view, was ‘‘most likely to effect their Safety and Happiness.’’[1] As a result, it became and remains one of the most fundamental tenets of our constitutional system of government that the sovereign people delegated to the national government only certain, enumerated powers, leaving the residuum of power to be exercised by the state governments or by the people themselves.[2] This division of sovereign powers between the two great levels of government was not simply a constitutional add-on, by way of the
Tenth Amendment.[3] Rather, it is inherent in the doctrine of enumerated powers that is embodied in the Constitution itself. Article I of the Constitution provides, for example, that ‘‘All legislative Powers herein granted shall be vested in a Congress of the United States.’’[4] And the specific enumeration of powers, found principally in Article I, section 8, was likewise limited.
The Tenth Amendment sums up this basic theory of our system of government:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Joseph Sobran writes:
In Federalist No. 41, James Madison asked rhetorically: “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?”
| The "Anti-Federalists" were those who tended to oppose the ratification of the Constitution on the grounds that it gave too much power to the new federal government. Patrick Henry ("Give me liberty or give me death!") was one of many great American Founders who refused to sign or support the new Constitution. "I smell a rat in Philadelphia," Henry said. |
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Madison was replying to anti-Federalist writers who had warned that the “general welfare” clause opened the way to unlimited abuse. He haughtily accused those writers of “labour[ing] for objections” by “stooping to such a misconstruction” of the obvious sense of the passage, as defined and limited by those powers explicitly listed immediately after it. Like so many things the Federalists said could never, ever happen, it happened. The “general welfare” clause is constantly abused in just the way the pessimists predicted. The federal government exceeds its enumerated powers whenever it can assert that other powers would be in the “general welfare.”
Test Case: Alcohol
The issue of Alcohol illustrates the concept of "Enumerated Powers." It shows that if we really follow the Constitution, we would need a constitutional amendment to give Congress the power to do the things it routinely does today. A hundred years ago, legislators had more respect for the oath they took to "support the Constitution" than they do today. When "teetotalers" asked Congress to ban alcohol, Congressmen knew that the Federal Government was never given any power in the Constitution over the sale and distribution of alcohol. That power had not been enumerated in the Constitution, so Congress didn't have that power. Federal "prohibition" of Alcohol was therefore unconstitutional in 1918 -- until "We the People" amended
the Constitution to give the federal government powers it didn't previously have. Whether the Amendment was a good idea is another issue. It turns out those powers were found to have disastrous side effects: high black-market profits, organized crime, and impure bootleg liquor. Americans then re-amended the Constitution, repealing the earlier amendment, to take away from the federal government the power to ban alcohol. That means the federal government no longer has any power over alcohol, and certainly not over other drugs, and such laws are unconstitutional, just as they were in 1918, back when the Constitution was more respected. But the "General Welfare" clause was not interpreted to give Congress
power to ban alcohol, even though many thought it would "promote the general welfare" of the nation. The original doctrine of "enumerated powers" still held sway in Washington D.C.
- Tom Woods:
- Some Guy: Ron Paul Doesn’t Know the Constitution (good background on the General Welfare clause)
- Walter E. Williams:
- Congressional Constitutional Contempt
- 'General Welfare' Myth Debunked
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- Thomas Jefferson: rejected a proposal using the principle of "enumerated powers":
- Jefferson's Opinion on the Constitutionality of a National Bank, 1791 - The Avalon Project at Yale Law School
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- Reagan 2020 - New Federalist Platform - The General Welfare
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- Article 1, Section 8, Clause 1: James Madison to Andrew Stevenson
A listener to our "Ozarks Virtual Town Hall" submitted this question:
| I thought the Preamble for the Constitution said the purpose of that document was "to provide for the common weal. . ." How can that be done without education? Without public safety? Without regulation of industries that would otherwise rob the public and spoil the environment? |
The preamble states:
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.
Probably our listener was referring to the highlighted phrase. What are "the blessings of liberty?" How are they "secured" by the government? The blessings include automobiles, computers, antibiotics, and thousands of groceries at the local market. How are these blessings "secured" by the government? By nationalizing the automobile industry, as in the Soviet Union? No, simply by protecting the nation from foreign invasion and eliminating trade barriers between the several States. What about punishing fraud and crime? Though considered to be a function of government, it was not considered to be a function of the federal government. Punishing crime remained with the states and local governments. The question posed during the Constitutional Convention and during the ratification process was "What form of government best secures the
Blessings of Liberty and promotes the general Welfare?" The answer given was not "a huge centralized federal government with unlimited powers," but rather a limited federal government that has only a few powers enumerated in the constitution, with the rest of government remaining with the states. The Tenth Amendment in the Bill of Rights summarizes the philosophy of the Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In Federalist 45, Madison described the relationship between the federal government and the states in these famous words:
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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [emphasis added]
And nobody believed that the state governments had the authority to nationalize production of computers, automobiles, and groceries. Government on all levels was tightly limited, and liberty extended to The People and their businesses. This is the theory of constitutionally-enumerated powers. Only powers enumerated in the Constitution are possessed by the federal government. But doesn't the "promote the general welfare" clause indicate that the federal government has vast, sweeping powers to do whatever is necessary to "promote the general welfare?" In testimony before Congress, CATO Institute scholar Jerry Taylor explained how the architects of the Constitution understood the "general Welfare" phrase:
| In Federalist No. 41, Madison summarizes the relationship of the general preface language including the "welfare" language, to the subsequent more detailed enumeration of specific powers, as follows.
"Some who have denied the necessity of the power of taxation [to the Federal government] have grounded a very fierce attack against the Constitution, on the language on which it is defined. It has been urged and echoed that the power to "lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States" amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction." (emphasis added)
Thus, Madison, who like Story after him sought to defend federal power, treats with derision the claim of opponents of federal powers the claim that the "welfare clause" is a general grant of power. Madison continues Federalist No 41 in this language of angry paradox:
"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 or more common than first to use a general phrase, and then to explain and qualify by an enumeration of the 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 ... what would have been thought of that assembly, if, attaching themselves to these general expressions and disregarding the specifications which limit their import, they had exercised an unlimited power of providing for the general welfare?" (emphasis added)
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More information on the "general Welfare" clause can be found on our Constitution page, and this article by Joe Sobran. Sobran explains how Alexander Hamilton joined Madison in opposing the "General Welfare" theory of government:
| The Federalist Papers are one of our soundest guides to what the Constitution actually means. And in No. 84, Alexander Hamilton indirectly confirmed Madison’s point. Hamilton argued that a bill of rights, which many were clamoring for, would be not only “unnecessary,” but “dangerous.” Since the federal government was given only a few specific powers, there was no need to add prohibitions: it was implicitly prohibited by the listed powers. If a proposed law — a relief act, for instance — wasn’t covered by any of these powers, it was ipso facto unconstitutional. Adding a bill of rights, said Hamilton, would only confuse matters. It would imply, in many people’s minds, that the federal government was entitled to do anything it wasn’t positively forbidden to do, whereas the principle of the Constitution was that the federal government is forbidden to do anything it isn’t positively authorized to do. Hamilton
too posed some rhetorical questions: “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?” Such a provision “would furnish, to men disposed to usurp, a plausible pretence for claiming that power” — that is, a power to regulate the press, short of actually shutting it down. We now suffer from the sort of confusion Hamilton foresaw. But what interests me about his argument, for today’s purpose, is that he implicitly agreed with Madison about the narrow meaning of “general welfare.” After all, if the phrase covered every power the federal government might choose to claim under it, the “general welfare” might be invoked to justify government control of the press for the sake of national security in time of war. For that matter, press control might be
justified under “common defense.” Come to think of it, the broad reading of “general welfare” would logically include “common defense,” and to speak of “the common defense and general welfare of the United States” would be superfluous, since defense is presumably essential to the general welfare. So Madison, Hamilton, and — more important — the people they were trying to persuade agreed: the Constitution conferred only a few specific powers on the federal government, all others being denied to it (as the Tenth Amendment would make plain). Unfortunately, only a tiny fraction of the U.S. population today — subtle logicians like you — can grasp such nuances. Too bad. The Constitution wasn’t meant to be a brain-twister. |
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Our listener mentions three functions which are necessary to secure "the Blessings of Liberty":
The first question to be asked is, must education etc. be provided by the government, or can it be provided by the Free Market: voluntary associations, businesses, and "We the People" networking together to assure that children are educated. In other words, which political theory is true: capitalism or socialism? If socialism is true, we might still ask, should state and local governments decide how children will be educated, or should that be done by the federal government? In other words if only government can provide these elements of an orderly and prosperous society, which level of government? The Constitutional answer precludes the federal government from involving itself in these areas. It would not have been ratified by states jealous to protect their own powers, or The People jealous to protect their liberties, if it gave to the federal government such sweeping powers.
Things Have Changed
Here (on the left) is Hamilton's discussion of "states' rights" from Federalist Paper 17. He is attempting to justify the Constitution by showing how the new federal government will not assume state authority. He was very much mistaken:
| The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed. |
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| It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter. |
Americans today seem to set their affections on distant celebrities, sports heroes, and government officials. More Americans are attached to Barack Obama, Paris Hilton, and Tiger Woods than they are to their local sheriff. Has "human nature" changed? No, Hamilton is talking about human beings in a Christian nation. Mothers in a Christian nation are more attached to family than to Britney Spears. Not so in a secular nation. Regenerated human nature is different from atheistic human nature. Attachment to Bill Clinton is certainly not due to "a much better administration" vis-à-vis the states. In a secular nation, the goal of "better administration" of government which Hamilton had does not exist. |
| This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation. |
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| The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford. |
The assumption here is that of "enumerated powers" -- namely, that the federal government doesn't have many, and the states have by far the most. |
| There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light,--I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all
other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union. |
This is a fascinating paragraph. Nobody today has this kind of respect for law enforcement. And law enforcement does not have the kind of paternalistic educational function it once had. ("paternalistic" used in a complimentary, rather than derogatory, way) The sources of this disrespect are two: the rebellion against authority in the 1960's, and widespread police corruption that has been increasing since then. But there is also growing impersonalism that accompanies a flight from personal responsibility and a desire for the State to be our savior. |
| The operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment. |
Robert Nisbet, remarked in an autobiographical passage in one of his books that when he was born, in 1913, the only contact that most Americans had with the Federal Government was the Post Office. In 1750, that was most Americans' only contact with the British government, a fact well understood by Benjamin Franklin, the nation's deputy postmaster general in 1752. He used this office to establish an inter-colonial network of personal contacts. Americans today spend more time in front of the TV or Internet than they do at the local donut shop, so they have less contact with local law enforcement. The Liberal Media lionizes the federal government, and this is what most people see. |
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