The “General Welfare”
November 23, 1999
This column is for serious conservatives only. No cheap off-color
Clinton jokes today. We’re going deep. You may want to put on your
thinking cap for this one.
As you presumably know, Article I,
Section 8 of the Constitution gives Congress the power to impose taxes
to “provide for the common Defence and general Welfare of the United
States.” But since the New Deal, this clause has been pretty much boiled
down to one phrase: “general welfare.” It is now generally assumed that
Congress may pass any law it deems in the “general welfare” of the
United States.
Strict constructionists have always objected that this broad and vague
interpretation endows the federal government with an unlimited range of
power, making redundant nonsense of the rest of Section 8, which lists
the particular powers of Congress. In Federalist No. 41, James Madison
asked rhetorically: “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?”
Madison was replying to
anti-Federalist writers who had warned that the “general welfare” clause
opened the way to unlimited abuse. He haughtily accused those writers of
“labour[ing] for objections” by “stooping to such a misconstruction” of
the obvious sense of the passage, as defined and limited by those powers
explicitly listed immediately after it.
Like so many things the Federalists
said could never, ever happen, it happened. The “general welfare” clause
is constantly abused in just the way the pessimists predicted. The
federal government exceeds its enumerated powers whenever it can assert
that other powers would be in the “general welfare.”
The Federalist Papers are one of our
soundest guides to what the Constitution actually means. And in No. 84,
Alexander Hamilton indirectly confirmed Madison’s point.
Hamilton argued that a bill of rights, which many
were clamoring for, would be not only “unnecessary,” but “dangerous.”
Since the federal government was given only a few specific powers, there
was no need to add prohibitions: it was implicitly prohibited by the
listed powers. If a proposed law — a relief act, for instance — wasn’t
covered by any of these powers, it was ipso facto unconstitutional.
Adding a bill of rights, said Hamilton, would only confuse matters. It
would imply, in many people’s minds, that the federal government was
entitled to do anything it wasn’t positively forbidden to do, whereas
the principle of the Constitution was that the federal government is
forbidden to do anything it isn’t positively authorized to do.
Hamilton too posed some rhetorical questions: “For why declare that
things shall not be done which there is no power to do? Why, for
instance, should it be said, that the liberty of the press shall not be
restrained when no power is given by which restrictions may be imposed?”
Such a provision “would furnish, to men disposed to usurp, a plausible
pretence for claiming that power” — that is, a power to regulate the
press, short of actually shutting it down.
We now suffer from the sort of
confusion Hamilton foresaw. But what interests me about his argument,
for today’s purpose, is that he implicitly agreed with Madison about the
narrow meaning of “general welfare.”
After all, if the phrase covered
every power the federal government might choose to claim under it, the
“general welfare” might be invoked to justify government control of the
press for the sake of national security in time of war. For that matter,
press control might be justified under “common defense.” Come to think
of it, the broad reading of “general welfare” would logically include
“common defense,” and to speak of “the common defense and general
welfare of the United States” would be superfluous, since defense is
presumably essential to the general welfare.
So Madison, Hamilton, and — more
important — the people they were trying to persuade agreed: the
Constitution conferred only a few specific powers on the federal
government, all others being denied to it (as the Tenth Amendment would
make plain).
Unfortunately, only a tiny fraction
of the U.S. population today — subtle logicians like you — can grasp
such nuances. Too bad. The Constitution wasn’t meant to be a
brain-twister.
Joseph Sobran |
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