Month: October 2007

The General Welfare Clause

Here are pulled together some facts and thoughts on 10 clauses in the U.S. constitution that have been ignored, misunderstood or misapplied. Some people merely want the correct meaning to be restored by educating the judiciary, others wish to amend the constitution so as to correct the way the constitution is applied (to repeal or correct the problem clauses), and yet others would like an entirely new constitution. The focus here will be on one of the 10 troubling constitutional clauses: 

  1. The commerce clause 
  2. The contracts clause 
  3. The due process clause (amend 5 and 14) 
  4. The privileges or immunities clause 
  5. The equal protection of the laws clause 
  6. The general welfare clause 
  7. The necessary and proper clause 
  8. The supremacy clause 
  9. The takings and tax clauses 
  10. The enumeration of rights clause (amend 9) 

We have now come to the sixth of these clauses, The General Welfare Clause.

The General Welfare Clause.

The word “welfare” appears twice in the Constitution. Once in the preamble and again in Article 1, Section 8, as the introduction and purpose of the enumerated powers.. 

The preamble to the Constitution 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 defense, 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 1, Section 8 states: 

“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.”

Interpretation

The author of this article has split the “Taxing and Spending Clause” into two parts instead of treating it as one, as some people do, taking no issue per se with the power to spend. Separate treatment is being given in this series to the troubling items within the larger clause, spending for the “general welfare,” and “taxing.” 

This article has a Libertarian take on the meaning of “general welfare.” Some grounds for this interpretation can be found in history, but the argument boils down to the danger to liberty in government actions intended to help people through redistribution and projects that the private sector could very well accomplish. 

The reason this author finds this constitutional clause to be troubling is that it causes confusion. The wording of this introductory statement in Article I, section 8 would have been more of a statement of purpose and the power to tax and spend had been separate, the meaning could have been more clear. 

My wording might have been something like this: 

“Congress shall have the following Powers in order to maintain the Union of the States, to pay the Debts incurred by the revolutionary War and providing for national Defense and the national Benefit using Revenues derived from making Trade regular by levying Taxes, Duties, Imposts, Excises and Tariffs for these Purposes: . . .” 

then followed by the 16 specific numerated powers, followed by the grant of power to make laws to effect these powers, limited by true necessity and propriety, taking into account the presumption of liberty. The “general welfare” clause was not an independent grant of power. 

But I did not get a say in the matter. And we have to live with the confusion that resulted from the clause as written. But perhaps we will benefit from understanding how we got to where we are today. 

First, what did “welfare” mean in the age of the Founders? From the Free Republic Web Site: 

We all know the meaning of words can change over time. In order to more accurately assess the meaning of the word “welfare”, with respect to its use in the Constitution, I consulted a source from that period. I happened to own a reprint of the 1828 edition of Noah Webster’s American Dictionary of the English Language. Here is how the word “welfare” was defined 40 years after it was written in the Constitution:

WEL´FARE, n. [well and fare, a good going; G. wohlfahrt; D. welvaard; Sw. valfart; Dan. velfærd.]
1. Exemption from misfortune, sickness, calamity or evil; the enjoyment of health and the common blessings of life; prosperity; happiness; applied to persons.
2. Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government; applies to states.

A clear distinction is made with respect to welfare as applied to persons and states. In the Constitution the word “welfare” is used in the context of states and not persons. The “welfare of the United States” is not congruous with the welfare of individuals, people, or citizens. 

See Free Republic dot com for more on their viewpoint. 

The preamble of the constitution establishes no powers or rights. It merely states the purpose of the constitution. No further development of what “general welfare” means can be made based on the mention of it in the preamble.

The heading statement of Article 1, Section 8 confers on congress powers to lay and collect taxes, duties, imposts and excises. It then states the purpose of this in broad terms, to be expressed in detail in the list of 16 powers that follows. This purpose is that the funding placed at congress’ disposition is to be used for federal and state debts due to the revolutionary war and for future defense and for the “general welfare of the United States.” It concludes with limiting the duties, imposts and excises to amounts that would be uniform among the states.

It is wrong to read more than a basic power to tax and spend into this, to see any other power being granted here. All other details, as to what, specifically, the tax revenue may be spent on follows in the list of 16 specific powers. 

Despite the wishes of some to invoke “original intention” in interpreting the constitution, this author will only dare to the kind of originalism that looks at what the public thought that it meant, who would read this clause or hear about it, at the time it was written. At that time, it was clear that general welfare in this context dealt with the welfare of the Union, and excluded any individual or local welfare. 

The intentions of the Founders varied, from Hamilton’s “nationalist” position (advocating a strong central government that might be supreme in all matters and that could provide all manner of public goods) to Jefferson’s night-watchman state, with Madison somewhere in between. The debates in the constitutional convention are proof of the varied intentions. And since the Founders all were human, their intentions probably changed during the process. “General welfare” was carried forward from the Articles of Confederation. Perhaps there was very little thought put into what functionality it would have in the new constitution. 

But the meaning to the nation was plain: no local interests could be provided aid from the new federal government. The welfare concerned the wholesomeness of the Union, the federal level, the matter of binding the states together for mutual benefit, the health of the arrangement of the separated powers, the federalist structure, not the well-being of groups or individuals, whether travelers, farmers, manufacturers, shop-keepers, freight-haulers or consumers, etc. The strongest reading would be that the benefit of this “general welfare” had to be a benefit for all rather than some people, without it being a direct benefit to every individual. It seems it had to be limited to “public use” in the sense of the Fifth Amendment. 

In the twenty-first century, however, the meaning has reversed. General welfare now covers all kinds of welfare. How has this come about?

History

Hamilton and Jefferson fought about the meaning of “general welfare” in several important cases: 

  • “Opinion on the Constitutionality of the National Bank,” to establish a national bank to handle taxes, borrowing and debt payments. 
  • “Report on Manufactures,” seeking government support for industry to keep the economy strong and well-supplied in case of war.

Chief Justice John Marshall strikes the decisive blow. It fell to John Marshall, Chief Justice of the United States from 1801 to 1835, to ensure that the Hamiltonian view was established as our fundamental law. Marshall’s 1819 opinion in the case involving the National Bank, (McCulloch v. Maryland,) is a milestone for the confirmation of the national government’s exercise of its implied powers — and, it is also clear, to carry out its Manifest Destiny as a Continental Republic, “from sea to shining sea.”

Lincoln – to me the obvious solution to the problem of slavery was buying out all the slaves. I don’t believe the president would have done so, for ending slavery was not his mission. And when he did comment on that before the War Between the States, his wish was to be able to ship all African-Americans back to Africa. His mission seems to have been to use whatever stratagem he could to prod the belligerent southern states to secede and then for the “general welfare of the United States” force them to remain in the Union, thereby strengthening the central government. See Alexander Hamilton Institute dot org. In the final analysis, he only started the tortuous liberation of slaves, and considerably strengthened the federal government. 

By the twentieth century, the expansionist or Hamilton ian view of “general welfare” was promoted by the Progressive movement and then by Franklin D. Roosevelt. His “New Deal” used the “general welfare” clause as a distinct enumerated power, trying to shoehorn in a Second Bill of Rights. The supreme court resisted at first, but swung around, and as a result our country gradually became a welfare state. 

Hamilton is vindicated with the welfare state. And the chickens came home to roost. A government strong enough to do as much good for disadvantaged people would turn out to be a government strong enough to do much harm as well. What you see is the promised good of providing a living to the hungry and poor. What you don’t see is the expropriation of resources from those who are productive. What you don’t see, until later, is the encroachment of growing government power on your freedom. 

Conclusion 

Should the General Welfare clause be defined without any shadow of doubt to provide a clear understanding of what it entails and what is not included? 

Unfortunately, you cannot put the lid back on Pandora’s box….

Let’s say we narrowly define the General Welfare clause to include only general improvements to the welfare of the country (i.e. nothing to individuals). 

Would every law on the books which benefits individuals directly then become un-Constitutional? They would. They would all be stricken down. The US would instantly become a place that it was not yesterday. 

What we need is a strong leader (in Congress or the White House) to define, publicly, what the General Welfare clause will be interpreted as. Then, enforce lawmaking decisions in line with that definition. 

It will never happen though. The government is politics first and running the country second, which means no politicians will nail themselves down on an issue like this. 

Another problem is that the definition of “General Welfare” changes over time. Certainly, insurance programs like Medicare/Medicaid or Social Security never existed (even as ideas) in the the late 18th century. Technology and social philosophy change over time. What might be considered a good and exact definition now may be inappropriate or, worse, incorrect in the future. 
America’s Debate 

Until some amendments can be made, we are stuck with the confusion and the financial burden of the welfare state. Let us hope it does not end with national financial collapse.

Once Again, The Horse Did Not Fly, by David F. Nolan

When are we going to learn? In Tuesday’s elections, a grand total of eight Libertarians, out of more than 600 running, were elected to office — all at the state legislature level or lower. [www.lp.org/index_2006.html]

This is a success rate of about 1.3%. It is fairly typical of how we do, year after year. And yet a vociferous faction within the LP continues to say that our “primary mission” is to elect people to office.

This, I will submit, is stupid. When you define your mission as something you’re not good at, people stop taking you seriously after awhile. They conclude that you are either delusional or dishonest.

It is time for us to recognize, as we once did, that for the foreseeable future the primary mission of the Libertarian Party is NOT electing people to office.

In my 1971 article “The Case for a Libertarian Political Party,” I made this point very clear. [elfsoft.home.mindspring.com/politics/nolan.htm]

I reiterated this point in a speech I made to the 2006 convention of the Ohio Libertarian Party. You can read a summary of that speech (and listen to it in its entirety, if you are so inclined) at www.ernesthancock.com/archive/?2006-06-18-Bonus

I believe it is time for a wide-open, no-holds-barred debate on the role of the LP within the U.S. political system. We can continue pretending that we are going to teach the horse to fly (see Ohio speech), and watch our membership dwindle as people get frustrated and burn out, or we can redefine our mission as building a strong network of libertarians.

The choice is ours — but we can’t have it both ways.

Please relay this message to every libertarian you know. Post it on blogs and chat boards. Until this question is settled, the future of the LP will remain cloudy at best.

Yours for Liberty,
David F. Nolan

# # #

These comments are currently on Rational Review (the source for this article), you are welcome to leave comments here, but I’d prefer if comments were left on the RR site (makes the conversation simpler). Click:

Once Again, The Horse Did Not Fly

# # #

smithmn Says:
November 13th, 2006 at 7:16 pm

I’m in complete agreement with Mr. Nolan. About 4 years ago, at my lengthy urgings, the LP of Minnesota began discouraging candidates at the state or federal levels, and instead trying to get individuals to run for local office. When we were running full candidate slates, we worked hard at it, and were able to get about 2.5%, about 45,000 votes. Those totals, while high enough to stroke the egos of those who got to see their names on ballots, did nothing to improve our chances in future elections.

Worse, I think such results, election after election, are NEGATIVE in the eyes of others. Anyone noticing repetition of such weak results is likely to come to the conclusion that there must be something basically wrong with the positions of Libertarians.

There are much better ways to spend our resources than continuing to bounce off brick walls, but first we have to make the decision to STOP flooding ballots with candidates who have no chance to win. In the attempt to run large numbers of candidates, we have also pushed many who really shouldn’t be running. I recall a non-libertarian friend referring me to an out-of-state article about a group of our candidates. They had gotten press coverage, but their photos in the newspaper were actually scary, even to me. That gives the impression that we’ll endorse anyone… that we have no standards, and that we’re desperate. None of those impressions are likely to encourage anyone to join us, which is exactly why our results never improve.

Thomas L. Knapp Says:
November 14th, 2006 at 3:36 pm

Bob,

I think that Nolan might disagree with one part of your argument: “we have to make the decision to STOP flooding ballots with candidates who have no chance to win.”

I could be wrong, but I think that he favors “paper candidate” strategies — not because he thinks that they’ll lead to electoral victory somehow, but because he wants people to a) see the word “Libertarian” on their ballot, b) Realize from that that there’s something besides the big guys, and c) Possibly investigate and become libertarians. I don’t have a fully-formed opinion on that notion, but I do agree with you that it does sometimes lead to having candidates on the ballot who do more harm than good.

Being an electoral politics kind of guy, I like to see serious candidates who are personable, articulate and willing to raise a little money and put up a fight. I think our future may lie in the “balance of power” races — if we can “spoil” consistently, we may be able to force the Republicans and Democrats to start competing to see who can be “more libertarian.” Or maybe not.

MamaLiberty Says:
November 14th, 2006 at 5:16 pm

I spent more than 20 years as a VERY active member of the Libertarian Party in California. I worked hard at ballot status and a lot of state and local campaigns. I helped train activist volunteers and was Central Committee chair for the largest county in Calif.

The end result? Nada. NOTHING of any lasting value, as far as I could see. The LP was a political laughing stock… and still is for all intents and purposes outside the daydreams of the faithful few. I watched two potentially viable candidates lose as Libertarians, then run the next time as Republicans and repudiate pretty much everything they had said they stood for the first time!! 

And then… one day I realized that I didn’t want a “libertarian” government to run my life any more than I did one filled with Repugs or Dims. Power tends to corrupt… and there is nothing to prevent corruption in Libertarians, any more than in anyone else. The trick is not to give anyone that power over you to start with. Yes, they can take it at the point of a gun, but you don’t have to give it to them willingly.

So, I’ve turned my efforts into many other avenues, working to help people understand that they don’t have to allow their lives to be run by others. They will live free, here and now, in direct proportion to how well they practice non-aggression and personal responsibility, which includes accepting the consequences for their choices and actions. 

It’s a tough sell.

MamaLiberty