Debating the General Welfare Clause

By Chad Kent
Feb 17, 2012

CDN: The 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…

The General Welfare Clause is one of the most distorted and misunderstood parts of the Constitution. A lot of people today – including the Supreme Court – will tell you that it grants the federal government a separate power to provide for the “general welfare of the United States.” In other words, that Congress has the authority to do whatever is in the best interests in the country.

It seems like common sense that no one who was trying to create a limited government would decide to give Congress this kind of broad, unrestricted power. Despite that, this can be a tricky topic to debate. To help you the next time you have to explain the obvious to someone, I’ve prepared a crash course for you on the General Welfare Clause.

Below is an explanation of the meaning of the General Welfare Clause, along with four reasons why is simply cannot be a separate grant of power – all broken down into individual arguments that you can use.

What does the General Welfare Clause mean?

- This clause has two parts – a power and a purpose. The first half grants the power to “lay and collect Taxes, Duties, Imposts and Excises”. The second half gives the purpose that this power is to be used for – “to pay the Debts and provide for the common Defence and general Welfare.”

“Is this an independent, separate, substantive power, to provide for the general welfare of the United States? No, sir. They can lay and collect taxes, etc. For what? To pay the debts and provide for the general welfare. Were this not the case, the following clause would be absurd. It would have been treason against common language.”

Edmund Randolph, June 15, 1788

- The General Welfare Clause is actually a restriction on Congress rather than a grant of broader power. It is a clarification that the power to lay taxes, etc is to be used for the general welfare (the good of the whole country) rather than the specific welfare (a certain state, region, group, etc.).

- In other situations in life, the meaning of a clause like this would be obvious. For example, imagine that parent leaves a note for his teenage son that reads:

“You have permission to use the car keys and the $20 that are laying on the table, go to the football game and have a good time. ”

It’s pretty clear that the son is being given permission to use the keys and the money for the purpose of going to the football game. No one in their right mind would argue that “have a good time” is a separate grant of permission for the boy to do whatever he thought would be fun. But the way that the General Welfare Clause is currently interpreted would be like the son in this example going to an all night drinking party and then claiming, “But you said I had permission to have a good time!”

Why grant specific powers if there is a grant of “general” power?

The Founders put a lot of time and effort into deciding exactly which powers would be granted to the new federal government. It makes absolutely no sense to waste all that time on specifics if they were just going to turn around and grant the government the virtually unlimited power to provide for the general welfare.

James Madison made the same point:

“But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace not only all the powers particularly expressed, but the indefinite power which has been claimed under them, the intention was not so declared? why, on that supposition, so much critical labour was employed in enumerating the particular powers, and in defining and limiting their extent?”

James Madison, Nov. 27, 1830

If it is a separate power this clause creates unlimited government power

- Creating a limited federal government was one of the central purposes for writing the Constitution. But granting the authority to provide for the general welfare would have resulted in a government of unlimited power.

We can now see for ourselves that this is true. The Supreme Court has decided that this clause does grant the power to provide for the general welfare – because of that most of our public officials believe that the General Welfare Clause justifies anything they want to do. Can you think of one area of your life that current members of Congress don’t feel is their business?

“If the clause, “to pay the debts and provide for the common defence and general welfare of the United States,” is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and it creates a general authority in congress to pass all laws, which they may deem for the common defence or general welfare. Under such circumstances, the constitution would practically create an unlimited national government.”

Joseph Story, Commentaries on the Constitution

- Can you think of a law that couldn’t be justified under a power to whatever is in the best interests of the country?

“[F]or what is the case that would not be embraced by a general power to raise money, a power to provide for the general welfare, and a power to pass all laws necessary and proper to carry these powers into execution [...] Can less be said, with the evidence before us furnished by the journal of the Convention itself, than that it is impossible that such a Constitution as the latter would have been recommended to the States by all the members of that body whose names were subscribed to the instrument?”

James Madison, Nov. 27, 1830

As a separate grant of power this clause would be inconsistent with the rest of the Constitution

- The 10th Amendment states that:

“The powers not delegated to the United States by the Constitution [...] are reserved to the States respectively, or to the people.”

If the General Welfare Clause is interpreted the way it is today and means that the federal government has the power to do what’s in the best interests of the country, this amendment makes no sense. Apparently – based on that interpretation – four years after the Constitution was written the Founders felt the need to pass an amendment to make sure everyone knows that the states have the power to do everything that’s not in the general welfare of the country. So… the states have the authority to do whatever is bad for the country. (On second thought, it may explain a lot about California and Illinois…)

- Nowhere else in life do we take one phrase out of over 7,000 words and assume it has a meaning that completely contradicts the rest of the document. The entire Constitution was written to carefully limit the power and scope of the government. So it is completely illogical to interpret the General Welfare Clause as granting the authority to do whatever is in the best interests of the country.

“On the other hand, construing this clause in connexion with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative. It becomes a qualification of that clause, and limits the taxing power to objects for the common defence or general welfare. It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation.”

Joseph Story, Commentaries on the Constitution

None of the Founders objected to this clause

- The authority to provide for the general welfare would have been a massive grant of power to the federal government. Yet somehow, none of the Founders objected to the General Welfare Clause during the Constitutional Convention:

“That the terms in question were not suspected in the Convention which formed the Constitution of any such meaning as has been constructively applied to them, may be pronounced with entire confidence; for it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant and cautious definition of Federal powers should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.”

James Madison, Nov. 27, 1830

- The states – many of which were concerned about being overrun by the power of the new federal government – didn’t object either. Of all the 189 amendments that were suggested to be a part of the new Bill of Rights, none of them mentioned the General Welfare Clause:

“Here are a majority of the States proposing amendments, in one instance thirty-three by a single State; all of them intended to circumscribe the powers granted to the General Government, by explanations, restrictions, or prohibitions, without including a single proposition from a single State referring to the terms common defence and general welfare; which, if understood to convey the asserted power, could not have failed to be the power most strenuously aimed at, because evidently more alarming in its range than all the powers objected to put together; and that the terms should have passed altogether unnoticed by the many eyes which saw the danger in terms and phrases employed in some of the most minute and limited of the enumerated powers, must be regarded as a demonstration that it was taken for granted that the terms were harmless, because explained and limited, as in the “Articles of Confederation,” by the enumerated powers which followed them.”

James Madison, Nov. 27, 1830