General Welfare Clause: a Restriction, Not a Power
Worst Decisions in US Judicial History Series:
FDR-Era Supreme Court Gives Congress Carte Blanche
THE GENERAL WELFARE CLAUSE:
How a Constitutional Restraint Was Transformed
Into a Constitutional Power
Douglass H. Bartley
(A version of this article was published in Chronicles Magazine)
“[T]he power of Congress to authorize expenditures of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” U.S. Supreme Court in United States v. Butler (1936).
“[The constitution’s ‘direct grants of legislative powers’] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.” Hamilton, Federalist No. 83.
“No stronger proof could be given of the distress under which [1788 proponents of unlimited federal power doctrine] labour . . . , than their stooping to such a misconstruction.” Madison, Federalist No. 41.
The words “general welfare” have had the greatest significance in modern life of any in the constitution. Originally regarded by its 18th Century Federalist creators as a restraint on federal power, the brake of general welfare has been transformed, retooled by the U.S. Supreme Court into a huge turbine, a supercharger that drives today’s immense federal power grid.
In modern times, “general welfare” has become the constitutional touchstone for vast portions of the federal taxing, spending, and regulatory apparatus. “General welfare” is the linchpin of federal expansionism, the last straw almost invariably grasped by those whose federal social schemes cannot find constitutional warrant in any enumerated power.
The modern preeminence of the General Welfare Clause is a development that would have jolted James Madison, the Father of the Constitution, and his close friend Thomas Jefferson could they have but envisioned the sort of judicial torture modern jurists have inflicted on the clause.
Indeed the abuse of the clause surely would have startled even the fervent arch-centralist and expansionist, Alexander Hamilton. In helping to sell the proposed constitution to the ratifying states, Hamilton assured readers of Federalist No. 83 that the new constitution would grant no “general legislative authority”. Hamilton’s representation all by itself disembowels the arguments of the federal expansionists.
How did we ever get from a federal government having only those powers delegated to it to a government vested with “general legislative authority “one with authority to do everything not specifically negated in the constitution? The answer is: in large part through the Supreme Court’s contortion of the words “general welfare”.
ARTICLE I, §8, CL. 1 gives congress 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 . . . ;
Before ratification, the clause was the subject of controversy over the meaning of “provide for the common defense and general welfare. Opponents of ratification argued (and modern revisionists argue) that “general welfare gave congress an unlimited power to tax and to spend for any purpose that could be somehow related to promoting the national welfare or the public good.
More specifically, the argument was that the words would create a general public purpose power, complete of itself, independent, separate, and distinct from the 17 other enumerated powers in the following clauses. The general power, the argument continued, is limited in scope only by the proviso that federal taxing and spending must be for the common defense and general welfare, in contradistinction to insular or provincial defense or welfare.
That view, oddly enough, originated with Alexander Hamilton in a 1791 statement, a statement that came just three years after his assurances to the contrary in the Federalist. The General Welfare Clause, Hamilton, reversing his Federalist-self, said,
is as comprehensive as any that could have been used, because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the general welfare.
The contrary view, the Madisonian-Jeffersonian view, was that general welfare conveyed no independent federal power, but was “a sort of caption or general description”, as Madison put it, of the 17 enumerated powers listed in the immediately following clauses.
The so-called “Hamiltonian view”, that is, his post-Federalist view, ultimately received the imprimatur of the U.S. Supreme Court in 1936 in United States v. Butler, a truly seminal and tragic case in our constitutional history―perhaps the most tragic and ill-conceived of all the decisions the Supreme Court ever made, with the possible exceptions of Dred Scott v. Sandford (1857) (legalizing slavery) and Roe v. Wade (1973) (striking down the abortion laws of all 50 states). Butler was the Actium for limited federal power and the Waterloo for the very notion of a binding constitution.
In Butler, the immediate issue was the constitutionality of Franklin Roosevelt’s Agricultural Adjustment Act of 1933, which imposed a federal tax on processors of agricultural commodities. The tax proceeds were then distributed to farmers who agreed to limit their production of the commodity. The government, urging the court to adopt the “Hamiltonian view” of unlimited federal power, argued the tax was constitutionally justified as an exercise of its claimed power to legislate for the general welfare i.e., to help end the depression in agriculture by raising farm prices.
Though the court ruled against the government on other grounds, it nonetheless fully embraced the Hamiltonian notions that: congress had power to tax for whatever purposes could qualify as being for the general welfare; the General Welfare Clause was an independent source of public purpose, spending power for congress; and the “public purposes” were unlimited in scope. “[T]he power of Congress to authorize expenditures of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution”, declared the court.
Butler crossed the constitutional Rubicon, for it cut the taxing power loose from the restraint of the other enumerated federal powers. Until then everyone had thought the taxing power could be used only for funding measures that were exercises of the specific, enumerated powers―powers embodying the only public purposes constitutionally embraced. Butler changed the whole constitutional landscape, by ruling that congress could, in addition, tax for any unenumerated purpose that qualified as a public purpose. That opened the door for a Brobdingnagian taxing binge and ultimately the floodgates for the deluge of federal spending that inundates us today.
The only hope Butler left alive was in one wheezing passage that intimated “general welfare” might be subject to some limitations. But a year later that faint hope was dashed in Helvering v. Davis, which upheld the establishment of social security as a proper use of the general welfare “power”. There Justice Cardozo showed that even judicial giants can have bad even tragically bad days; for he announced the court’s almost total surrender to congress on the subject of constitutional limits to the government’s taxing power:
The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.
The constitutional text shows both Butler and Helvering to be plainly wrong, for two reasons. First, the clause grants no spending power. The power is a taxing power, giving congress power “to lay and collect taxes . . . to . . . provide for the common defense and general welfare of the United States.” The clause does not say congress shall have the power “to . . . provide for the common defense and general welfare”; that language is textually coupled with the power “to lay and collect taxes.” The various spending powers are embraced in the clauses that follow the taxing power.
Second, “general welfare” cannot rightly be read in the vacuum of the taxing power clause. The term must be read in relation to the other powers that follow powers which outline the ends or purposes to which the taxing power may be invoked. That was precisely the point of an extended argument Madison made in The Federalist. In No. 41, Madison crushed the argument that the General Welfare Clause conveys abstract, “general welfare” taxing and spending power:
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 defence or general welfare. No stronger proof could be given of the distress under which these writers labour 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 colour 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. * * *
But what colour 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. (Emphasis added.)
To further assuage fears of a new federal Leviathan, Madison made the additional point that “general welfare” in the new constitution was the same uncontroversial terminology used in the Articles of Confederation, the precursor of the Constitution:
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 defence, 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 defence 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 the 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!
The pre-1791 Hamilton, the Federalist Hamilton, agreed fully with Madison that general welfare was not a separate power. In Federalist No. 83, he said:
The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. (Emphasis added.)
Hamilton’s statement and Madison’s extended argument are examples of the ancient legal maxim, “Expressio unius est exclusio alterius”, meaning, as Hamilton described it in Federalist No. 83, “‘A specification of particulars is an exclusion of generals.'” In the Constitution the expression of the specific enumerated powers is the exclusion of all other powers not enumerated.
In other words, it’s impossible to argue rightly that “common defense and general welfare” enhances the federal legislative jurisdiction with an additional power to tax or spend in the “common defense and general welfare”, because if it did, why did the framers go to the trouble of enumerating 17 other powers (and still others elsewhere), all of which would have been subsumed by the one “common defense and general welfare clause standing alone?
Why would it have been necessary, for example, for the framers to equip congress with a separate and specific power “[t]o raise and support armies”, when that power is easily embraced in the general language, “to . . . provide for the common defense and general welfare”? Why would it have been necessary to give congress the separate and specific power “to establish post-offices and post roads”, when that specific power satisfies anyone’s test of serving the “general welfare”? And why would it be necessary to give congress jurisdiction to specify punishment for counterfeiting and piracy? Can anyone seriously maintain that punishment of those crimes is beyond the general welfare? And so on.
Madison was clearly right in representing the “common defense and general welfare” clause as being descriptive, not expansive, of the powers of congress. Madison’s consistent 1792 summation said just that: the clause is “a sort of caption, or general description of the specified powers . . . having no further meaning, and giving no further powers, than what is found in that specification.”
In their view, Madison and the Federalist Hamilton enjoyed the support of Jefferson who said:
[To construe the clause as providing a] distinct and independent power to do any act [congress] might please 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 . . . . Certainly no such universal power was intended to be given them. [The clause] was intended to lace [Congress] up strictly within the enumerated powers, and . . . without which, as means, those powers could not be carried into effect. (Emphasis added.)
Justice Joseph Story, himself an ardent centralist like Hamilton, agreed that the General Welfare Clause was not a grant of any additional power, stating that if the clause is “construed to be an independent and substantive grant of power, it not only renders unimportant and unnecessary the subsequent enumeration of specific powers, but it plainly extends far beyond them and creates a general authority in Congress to pass all laws which they may deem for the common defence or general welfare.”
In the face of all the authoritative statements concerning the limited purpose of “general welfare”, how, one might rightly ask, could the court in Butler have possibly adopted the “principle” of unlimited power? How could the court adopt a position that was the antithesis of Madison’s, Jefferson’s, and Story’s pronouncements? Worst of all, how could the court portray the view it adopted as the “Hamiltonian view” when Hamilton himself, writing as a representive of the founders in the Federalist and making representations to induce the states to ratify, took the opposite view?
We will probably never know. Conspiratorial explanations are I suppose possible such as that suggested by one amusing, historical curiosity of Butler: Alger Hiss (!) helped brief the case for FDR. That oddity might lead the more wary among us to ask, “Did Moscow have a hand in the death of the rule of law in the United States?” I’ll leave the answer to that fascinating question to others. The more likely explanation is that the court never knew Hamilton in the Federalist flatly ruled out what the court ruled in Butler― in other words either Butler’s lawyers did a bad job or the court wasn’t paying attention.
Whatever the explanation, there’s no doubt the court turned the Constitution inside out and used abominable reasoning in the process. It is wrong to condemn Madison’s, Hamilton’s, Jefferson’s, and Story’s conclusion, as the court did in Butler, on the ground that the conclusion transforms the clause into a “mere tautology” or useless verbiage. To be sure, it is intellectually possible to maintain that the Madisonian view renders “common defense and general welfare” tautological in the sense that “taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers”, as the court in Butler put it.
But to take the Butler view that general welfare is a source of general legislative power is to commit a far more egregious tautological sin a mortal sin that consigns the remaining 17 clauses of enumerated powers (and a number of other enumerated powers) into a tautological hell, resulting in massive superfluidity in contrast to which Madison’s “sin” of tautology is the most venial of the venial.
In truth, Madison did not really sin at all, for a common sense reading of the clause would recognize “common defense and general welfare” as words of limitation on the legislative power to tax. Read that way, the clause makes complete sense as Jefferson said, it was “intended to lace [congress] up strictly within the enumerated powers” and to give congress the taxing means of carrying those powers into effect.
Not at all tautological, the clause had a dual purpose: it was designed not only to give congress the financial means to carry out the enumerated powers, but to insure that congress would tax only for the “common defense” and “general welfare” that is, not for particular or parochial welfare. “General welfare”, indeed, is a limitation on the exercise of the enumerated powers meaning, for example, that the government cannot provide “national” defense only for Texas or build post offices only in Wyoming but must defend all states and provide postal service in all states. General welfare, in short, was intended not to enhance government power, but to rein it in, and ensure that it was exercised in a non-discriminatory way.
Far from being the bulwark of federal power in our constitutional system, the general welfare “power” is but a pillar of salt. And with it collapses the constitutional basis for much of the federal social engineering we have suffered in the aftermath of Butler and other cases like it.
Like the federal commerce clause so similarly bastardized, the general welfare anti-discrimination shield has become a sword for ambitious politicians, carte blanche for transforming our government from one which had only the powers given it into one having all powers except those expressly denied the antithesis of the very idea of the constitution.
To those who would argue that Butler and other cases are too embedded in our constitutional law to be reversed, one need only recall the words of Justice Holmes on the subject of illegitimate court decisions: “[these decisions are] an unconstitutional assumption of power by the courts of the United States which no lapse of time or respectible array of opinion should make us hesitate to correct.”
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 The story is told of Story that he was so strong a nationalist that as a circuit judge, he absorbed “jurisdiction as a sponge took up water,” and some claimed that “if a bucket of water were brought into his court with a corn cob floating in it, he would at once extend the admiralty jurisdiction of the United States over it.”
The article is an extract from the author’s book, The Kiss of Judice: The Constitution Betrayed: A Coroner’s Inquest and Report available at https://www.createspace.com/3502483 (An Amazon.com company)