Wednesday, December 3, 2008

The General Welfare Clause Made Powerless

Wednesday, December 03, 2008 | Posted by Chris Waner | Edit Post
Since the ratification of the US Constitution, one of the most-used and misrepresented clauses has been the General Welfare Clause, found in Article 1, Section 8 of the US Constitution:

The Congress shall have 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. . .

The rest of Article 1, Section 8 goes on to innumerate the specific powers granted to the legislative branch of the Federal government, and I encourage you to read it in its entirety here. It remains truly unfortunate for the American people that this clause remains in the law of the land because of the widespread potential for misinterpretation. And misinterpreted it has most surely been.

Many of the most egregious violations of the Constitution and the American people have been born out of the fundamental misunderstanding of this clause, not the least of which are the departments of Health, Homeland Security, Housing, Labor, Interior, and Transportation; agencies such as the FCC, EPA, FDA, and the FAA, and laws and programs such as welfare, social security, minimum wage, medicare, medicaid, etc. I could continue at some length. Each of these have used this clause in some way to springboard to a position of full Federal control--all in the name of "general welfare."

Such government expansion has not gone unchallenged either in Congress or in common discourse among American citizens. I have been in many conversations where the general welfare clause has been used to bolster the argument in favor of government expansion. I have argued that the aforementioned interpretation of that clause is not in keeping with the intentions of the founders. To which , almost to a fault, I receive the droning sound of the subjectivist's mantra: it is impossible to determine the original intent of the founders.

As much as many would like to believe that the Constitution is best interpreted by post-modern deconstructionists and philosophical relativists, original intent in the Constitution can be known because the original intent was explicitly spelled out in the Federalist and Anti-Federalist Papers.

So what do we learn from these writings? What we find is that, remarkably, there is unanimous agreement from both the Federalists and the Anti-Federalists. Their views are summarized in a speech given by Shawn O'Connor of the Free Enterprise Society:

Hamilton and Madison . . . re-state that if the general welfare clause conveyed absolute power to the government, why would they go on to list the specific powers they were going to grant the government. That wouldn't make any sense at all if they were going to give absolute power to the government. It was finally conceded by all at the convention that the general welfare clause conveyed absolutely no power to the government.

In other words, not even Hamilton, the staunchest of big-government proponents, viewed the general welfare clause to be anything other than an introductory statement to Section 8, later to be clarified and defined by the subsequent clauses in that Section.

We know original intent because original intent is explicitly stated in the Federalist and Anti-Federalist Papers, written by the very hands which inserted the general welfare clause into the US Constitution. We are forced to conclude, therefore, that the founders' intent was not to present an opportunity for government to expand by means a general and ill-defined clause, but rather that the general welfare of American citizens is best served when the strict limits in Article 1, Section 8 are placed on government. Objective readers must conclude that the general welfare clause cannot be used to defend the current size and scope of the Federal government. Further, if no Constitutional provision can be provided in support of far-reaching jurisdiction, then the government, as it stands today, is over-reaching and is in violation of the law of the land.

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