“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…”
~ U.S. Constitution, Art. I, Sec. 8, Clause 1
Our Constitution grants to Congress only 17 “enumerated” powers; all other power is reserved to the States. The first enumerated power is the power to lay and collect taxes “to pay the debts and provide for the common defense and general welfare of the United States.” Some people (usually those who desire more government involvement in our lives) interpret this phrase (“general welfare”) as a grant of power to do anything so long as it is for “the general welfare.” If you invest even a little time studying the Constitution and those who wrote it, it becomes clear that the Founding Fathers did not intend to confer upon Congress the power to legislate “for the general welfare.”
Does the specific grant of power to tax also give Congress the power to do anything it deems “for the general welfare?” Our Fourth President and “Father of the Constitution,” James Madison, was asked his opinion, and responded:
“The federal Government has been hitherto limited to the specified powers, by the Greatest Champions for Latitude in expounding those powers. If not only the means, but the objects are unlimited, the parchment had better be thrown into the fire at once.”
One cannot read Federalist No. 41 (authored by Madison) and cling to the view that Congress has the authority to do anything in the name of “general welfare” alone.
Paragraph 20 of Federalist No. 41 starts: “The power of levying and borrowing money, being the sinew [i.e. source of power] of that which is to be exerted in the national defense, is properly thrown into the same class with it.” Madison goes on:
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?
“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.” ~ James Madison in letter to James Robertson
“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.” ~ James Madison, 1792
“The Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient,’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed” ~ Thomas Jefferson, 1791
“Our tenet ever was… that Congress had not unlimited powers to provide for the general welfare, but were 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 been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.” ~Thomas Jefferson to Albert Gallatin, 1817. ME 15:133
How Did We Get So Far Off Track?
One need not be an historical genius to understand these simple concepts. So the question is, how did we get so far off track? Who is responsible for allowing the federal government to grow so wildly beyond the scope contemplated in our Constitution? The answer is: Big government politicians and complicit Presidents and Supreme Court judges.
United States v. Butler (1936)
In U.S. v. Butler, 297 U.S. 1 (1936), we started down the road using the General Welfare Clause for purposes not intended by the Founders. At issue in Butler was the Agricultural Adjustment Act of 1933, a New Deal measure passed under the presidency of Franklin Roosevelt, whereby the Secretary of Agriculture was empowered literally to pay a farmer to reduce his acreage under cultivation; the payment would be made from a fund generated by imposing a tax on the processing of the commodity. It essentially was an attempt by Congress to regulate agricultural production, and thereby control the costs of agricultural products. The Court at that time consisted of Owen Roberts (lead opinion); Willis Van Devanter; James McReynolds; George Sutherland; Pierce Butler; Charles Hughes; Harlan Stone (dissenting opinion); Louis Brandeis; and Benjamin Cardozo. Brandeis and Cardozo joined the dissent.
While a majority of the Court struck down the Act (Stone, Brandeis, and Cardozo would have upheld it), it rejected James Madison’s and Thomas Jefferson’s view of the General Welfare Clause (i.e., the power to tax for the general welfare is confined to the enumerated powers), and adopted the Hamilton-Story view (i.e., Congress can tax and spend “for the general welfare”), without stating a reason why.
To summarize, after U.S. v. Butler, Congress can tax for the general welfare; it can spend for the general welfare; but it cannot regulate for the general welfare. The Court adopted the more liberal interpretation of the constitution; what a surprise. Another example of the weakness and lack of discipline at the highest levels of our government.
Steward Machine Co. v. Davis (1937)
Another starting point on this topic is Steward Machine Co. v. Davis, 301 US 548 (1937). At issue was the validity of the tax imposed on employers by the Social Security Act of 1935. (Remember: the government, after U.S. v. Butler, can tax for the general welfare).
In the Steward Machine case, Justice Benjamin Cardozo wrote the lead opinion, and upheld the Social Security Act based essentially on the fact that the United States was in a depression and unemployment was high, despite that the U.S. Constitution makes no exceptions for difficult economic times. In Cardozo’s opinion, there is virtually no analysis of the General Welfare Clause, no historical insight, and no justification for the holding despite 25 pages of verbose, nonsensical drivel. Justice James McReynolds (dissenting) correctly described Cardozo’s opinion as a “cloud of words.”
The more insightful analyses are contained in the dissenting opinions of Justices McReynolds, George Sutherland (joined by Willis Van Devanter), and Pierce Butler. The dissenters better understood the Constitution and those who wrote it. The dissenting opinions are a much more rewarding read than Cardozo’s nonsense.
Justice McReynolds (citing Madison, Jefferson, Jackson, and others) limited the “General Welfare Clause”:
It is not a substantive general power to provide for the welfare of the United States, but is a limitation on the grant of power to raise money by taxes, duties, and imposts. If it were otherwise, all the rest of the constitution, consisting of carefully enumerated and cautiously guarded grants of specific powers, would have been useless, if not delusive…. It is clear that public charities within the States can be efficiently administered only by their authority.
Justice Pierce Butler wrote:
The Constitution grants to the United States no power to pay unemployed persons or to require the States to enact laws or to raise or disburse money for that purpose.
Perhaps the language of the Constitution could have been clearer on this point, or perhaps it was clear to the Founding Fathers at that time. Either way, the power to tax was not intended as a separate power given to Congress, but is only a means of accomplishing the enumerated powers when necessary. We should return to this interpretation, or amend the Constitution.
T. Jeffrey Beausay
In Federalist 39, James Madison describes the general character of the federal government. In it, Madison first distinguishes ”National” from “Federal.” The Constitution is both National and Federal. The idea of Federalism is that the individual States are sovereign and independent of all others as to matters internal to the State, and are co-equal with other States; no State is more powerful than another. The idea of Nationalism is that a majority of the nation as a whole (irrespective of which State one is a citizen of) controls much (but not all) of government.
