Thursday, March 1, 2012

Hijacking the General Welfare Clause

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 United States Constitution
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 United States Constitution
It is held as common wisdom, and even as a matter of law, that the "general welfare," as expressed in the Constitution, provides justification for the federal government to involve itself in any area of society which it so desires. Although the Supreme Court has ruled with that understanding for nearly 80 years, as with so much common wisdom, the story is much different when closely examined.

The general welfare is mentioned twice in the United States Constitution. The first mention is in the Preamble, the second in Article I, Section 8, Clause 1, sometimes referred to as the Taxing and Spending Clause.

The Preamble has never been held to convey any substantive powers, as expressed in Jacobson v. Massachusetts - 197 U.S. 11 (1905).1 Therefore, we only need to concern ourselves with the second occurance, that in the Taxing and Spending Clause.

For the first 150 years of our history, the Congress of the United States conducted its business within the boundaries of seventeen enumerated powers granted under Article I Section 8 of the United States Constitution, and the general welfare clause was understood to be "a reference to the other powers enumerated in the subsequent clauses of the same section." It wasn't until the case of United States v. Butler, 297 U.S. 1 (1936) 2 that the Supreme Court decided that a restrictive interpretation placed such substantive limits on the federal government that a broader interpretation was needed to support the massive expansion of the state that Roosevelt's New Deal required.

That bit of legerdemain was performed by referencing a commentary on the Constitution written by Supreme Court Justice Story in 1833, long after the Constitution was penned, and relying heavily on arguments eerily similar to those that Alexander Hamilton made only after the Constitution was ratified.3 Justice Story's interpretation was enthroned as law, overturning 150 years of judicial precedence, without substantial discussion, as the decision itself stated.
We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. 2
To those familiar with the writings of James Madison, the "Father of the Constitution," it is apparent why the Court chose not to "review the writings of public men and commentators." If they had done so, they would have had an impossible task set for them in justifying Justice Story's interpretation.

The general welfare clause of was considerable concern to those initially asked to ratify the Constitution, so James Madison addressed it extensively in Federalist Paper No. 41,4 and addressed it again, repeatedly, following the Constitution's adoption. In a letter to Edmund Pendleton, first President of the Supreme Court of Virginia, on January 21, 1792, he explained that the term general welfare "was always understood as nothing more than a general caption to the specified powers."
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 subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.
Not long after, in his remarks on the House Floor during the debates on the Cod Fishery bill in February 1792, Madison painted a dark yet prescient vision of the country as it might evolve if the general welfare clause were broadly interpreted.
If Congress can apply 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 establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; 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; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.
He summarized his viewpoint yet again almost 40 years later, in an April 20, 1831 letter to James Robertson, stressing his long-time consistency of interpretation.
With respect to the 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.
In light of those three quotes, how anyone can defend a broad interpretation of the "general welfare" clause eludes me. Yet the Supremes not only did so, but the justification of our over-reaching federal government is based in large part on the continuation of that charade. Otherwise intelligent people defend that interpretation even in light of these clear and contradictory words by James Madison, "The Father of the Constitution." Thousands of words of exposition have been written to justify an end-run around the very clear intentions of the authors of the Constitution and the society that adopted it, while in this brief essay we have highlighted the contemporaneous and very clear documentation that puts lie to that theory.

So the next time somebody tells you that the federal government's over-reaching authority is justified by the "general welfare" clause, draw their attention to the words of James Madison, the Father of the United States Constitution, and point out that poor James has been spinning in his grave since 1936, when the Supreme Court executed a power grab that reversed 150 years of judicial precedent.

...and that's all I have to say about that.
1 Jacobson v. Massachusetts - 197 U.S. 11 (1905)
Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.
2 United States v. Butler, 297 U.S. 1 (1936)
Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers.

Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight.

This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. [Footnote 12] We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one.
3 As summarized at Wikipedia
James Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.

Alexander Hamilton, only after the Constitution had been ratified, argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.
4 Madison's statement in Federalist No. 41 concerning the general welfare clause, while exhaustive, does not lend itself easily to the quick analysis possible with his correspondence and testimony. It is included here for those who wish to explore his postion farther.
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in 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.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare.

"But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? 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 nor common than first to use a general phrase, and then to explain and qualify it by a recital of 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, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare. " The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

1 comment:

  1. I'm reminded of Kelo v. New London and it being a "turning point" for property rights and Eminent Domain in the USA, though it had been happening, or was at least being attempted, before the Supreme Court got that case, such as in Alabaster, Alabama

    But I have little knowledge of history from before my lifetime outside technical fields. From this description of "General Welfare" it's obvious that the Constitution (and probably any such document for any large entity, including religion) has clearly been treated (for much of history, if not all along) as a "living document" with the original words' meanings being re-interpreted "as needed," regardless of whether it was intended that way or not.

    I'm reminded of a passage by Lewis Carrol, and I'm not too surprised to see it's been cited in, among many other places, two Supreme Court Cases: