Congress should
- start with first principles: "The Constitution creates a
Federal Government of enumerated powers."
- interpret the "General Welfare" clauses in terms of this
principle.
Government in a Free Enterprise Society
In a
recent Saturday Morning Presidential Address, President Bush said:
Our free enterprise system rests on the conviction that the Federal
government should intervene in the marketplace only when necessary.
This principle holds true on the state level as well as the federal
level: the government of the State of Missouri should not run farms, gas
stations, or grocery stores, competing against private farms and grocery
stores. It is not necessary for "the government" to grow and
sell food or pump gas.
Suppose horoscopes
become very unpopular, and no newspapers carry them anymore. Suppose, in
fact, that there is only one person in the United States who wants to
read a horoscope. This person complains to the government that the
private sector is not providing horoscopes, and therefore the government
should levy a horoscope tax to revive the flagging horoscope industry,
create high-paying horoscope jobs, "stimulate
the economy," and thereby "save
capitalism from itself."
Most people would disagree with this thinking, not just because they
don't believe in horoscopes, but because they would see that this
government program only benefits a "special interest," not the
"general welfare."
But grocery stores do benefit everyone. Shouldn't the government run
the grocery stores in order to "promote the general welfare?"
Not a single person who signed the Constitution would say that this
was a proper use of the Constitution.
The "General Welfare" Clauses
These clauses have been recruited to defend government spending on
projects the Signers of the Constitution would never have dreamed of
funding with taxpayers' money. Let's look at the clauses, then look at
them in context.
The Preamble to the Constitution says:
We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, 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 I of the Constitution creates the legislative branch, and
begins with these words:
Section 8.
1: 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;
Section 8 is important. It lists all of Congress' powers. These
enumerated powers are the only powers "We the People"
delegated to the new government.
The Concept of "Enumerated
Powers"
The Federal Government only has the powers which "We the
People" delegated to it in the Constitution.
The New American Magazine
listed all of the enumerated powers and duties of Congress. That list,
which should be at the fingertips of every congressman, follows.
• Levy taxes.
• Borrow money on the credit of the United States.
• Spend.
• Pay the federal debts.
• Conduct tribunals inferior to the Supreme Court.
• Declare war.
• Raise armies, a navy, and provide for the common defense.
• Introduce constitutional amendments and choose the mode of
ratification.
• Call a convention on the application of two-thirds of the states.
• Regulate interstate and foreign commerce.
• Coin money.
• Regulate (standardize) the value of currency.
• Regulate patents and copyrights.
• Establish federal courts lower than the Supreme Court.
• Limit the appellate jurisdiction of the federal courts, including
the Supreme Court.
• Standardize weights and measures.
• Establish uniform times for elections.
• Control the postal system.
• Establish laws governing citizenship.
• Make its own rules and discipline its own members.
• Provide for the punishment of counterfeiting, piracy, treason, and
other federal crimes.
• Exercise exclusive jurisdiction over the District of Columbia.
• Establish bankruptcy laws.
• Override presidential vetoes.
• Oversee all federal property and possessions.
• Fill a vacancy in the Presidency in cases of death or inability.
• Receive electoral votes for the Presidency.
• Keep and publish a journal of its proceedings.
• Conduct a census every ten years
• Approve treaties, Cabinet-level appointments, and appointments to
the Supreme Court (Senate only).
• Impeach (House only) and try (Senate only) federal officers.
• Initiate all bills for raising revenue (House only).
The federal government was not given power over Education,
Healthcare, Charity,
Employment Practices, or Alcohol,
Tobacco and Firearms. TNA adds,
These are the powers of Congress; there are no non-enumerated
powers. Leaving nothing to inference, the Constitution even specifies
that Congress may pass the laws “necessary and proper” for
executing its specified powers. Congressmen have simply to study and
apply the Constitution in order to restore sound government. That most
fail to do so is not the fault of the Founders, but of the people who
elect the congressmen and send them to Washington.
Basic Constitutional Theory
John
C. Eastman writes in “A
Fistful of Denial: The Supreme Court Takes a Pass on Commerce Clause
Challenges to Environmental Laws,”
-
[1] The Declaration of Independence
-
[2] See, e.g., The Federalist No. 39,
where James Madison noted that the
jurisdiction of the federal government
‘‘extends to certain enumerated
objects only, and leaves to the several
States a residuary and inviolable
sovereignty over all other objects’’;
See also The Federalist No. 45 (James
Madison) (‘‘The powers delegated by
the proposed Constitution to the federal
government are few and defined. Those
which are to remain in the State
governments are numerous and indefinite.’’);
McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 421 (1819) (Marshall, C.J.)
(‘‘We admit, as all must admit, that
the powers of the government are
limited, and that its limits are not to
be transcended.’’); Gregory v.
Ashcroft, 501 U.S. 452,457 (1991) (‘‘The
Constitution created a Federal
Government of limited powers.’’).
-
[3] See U.S. Const. amend. X (‘‘The
powers not delegated to the United
States by the Constitution, nor
prohibited by it to the States, are
reserved to the States respectively, or
to the people.’’).
-
[4] U.S. Const. art. I, § 1 (emphasis
added); see also U.S. Const. art. I, §
8 (enumerating powers so granted); McCulloch,
17 U.S. (4 Wheat.) at 405 (‘‘This
government is acknowledged by all, to be
one of enumerated powers. The principle,
that it can exercise only the powers
granted to it, . . . is now universally
admitted.’’); United States v.
Lopez, 514 U.S. 549, 552 (1995) (‘‘We
start with first principles. The
Constitution creates a Federal
Government of enumerated powers.’’).
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The Framers added their own contribution to the science of
politics. In what can only be described as a radical break with past
practice, they rejected the idea that the government was sovereign and
indivisible. Instead, they contended that the people themselves were
the ultimate sovereign; they could delegate all or part of their
sovereign powers to a single government or to multiple governments as,
in their view, was ‘‘most likely to effect their Safety and
Happiness.’’[1] As a result, it became and
remains one of the most fundamental tenets of our constitutional
system of government that the sovereign people delegated to the
national government only certain, enumerated powers, leaving the
residuum of power to be exercised by the state governments or by the
people themselves.[2] This division of sovereign
powers between the two great levels of government was not simply a
constitutional add-on, by way of the Tenth Amendment.[3]
Rather, it is inherent in the doctrine of enumerated powers that is
embodied in the Constitution itself. Article I of the Constitution
provides, for example, that ‘‘All legislative Powers herein
granted shall be vested in a Congress of the United States.’’[4]
And the specific enumeration of powers, found principally in Article
I, section 8, was likewise limited.
The Tenth Amendment sums up this basic theory of our system of
government:
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
Joseph Sobran writes:
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?”
| The
"Anti-Federalists" were those who
tended to oppose the ratification of the
Constitution on the grounds that it gave too
much power to the new federal government. Patrick
Henry ("Give me liberty or give me
death!") was one of many great American
Founders who refused to sign or support the
new Constitution. "I smell a rat in
Philadelphia," Henry said. |
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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.”
Test Case: Alcohol
The issue of Alcohol illustrates the concept of "Enumerated
Powers." It shows that if we really follow the Constitution, we
would need a constitutional amendment to give Congress the power
to do the things it routinely does today.
A hundred years ago, legislators had more respect for the
oath they took to "support the Constitution" than they do
today. When "teetotalers"
asked Congress to ban alcohol, Congressmen knew that the Federal
Government was never given any power in the Constitution over the sale
and distribution of alcohol. That power had not been enumerated in
the Constitution, so Congress didn't have that power. Federal "prohibition"
of Alcohol was therefore unconstitutional in 1918 -- until
"We the People" amended
the Constitution to give the federal government powers it didn't
previously have.
Whether the Amendment was a good idea is another issue. It turns out
those powers were found to have disastrous
side effects: high black-market profits, organized crime, and impure
bootleg liquor. Americans then re-amended
the Constitution, repealing the earlier amendment, to take away from
the federal government the power to ban alcohol. That means the federal
government no longer has any power over alcohol,
and certainly not over other drugs, and such
laws are unconstitutional, just as they were in 1918, back when the
Constitution was more respected.
But the "General Welfare" clause was not interpreted to
give Congress power to ban alcohol, even though many thought it would
"promote the general welfare" of the nation. The original
doctrine of "enumerated powers" still held sway in Washington
D.C.
- Walter E. Williams:
- Congressional
Constitutional Contempt
- 'General
Welfare' Myth Debunked
-
- Thomas Jefferson: rejected a proposal using the principle of
"enumerated powers":
- Jefferson's
Opinion on the Constitutionality of a National Bank, 1791 - The
Avalon Project at Yale Law School
-
- Reagan 2020 - New Federalist Platform - The General Welfare
A listener to our "Ozarks
Virtual Town Hall" submitted this question:
| I thought the Preamble for the Constitution
said the purpose of that document was "to provide for the
common weal. . ." How can that be done without education?
Without public safety? Without regulation of industries that
would otherwise rob the public and spoil the environment? |
The preamble 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 defence, 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.
Probably our listener was referring to the highlighted phrase.
What are "the blessings of liberty?" How are they
"secured" by the government? The blessings
include automobiles, computers, antibiotics, and thousands of groceries
at the local market. How are these blessings "secured" by the
government? By nationalizing the automobile industry, as in the Soviet
Union? No, simply by protecting the nation from foreign invasion and
eliminating trade barriers between the several States. What about
punishing fraud and crime? Though considered to be a function of
government, it was not considered to be a function of the federal
government. Punishing crime remained with the states and local
governments.
The question posed during the Constitutional Convention and during
the ratification process was "What form of government best secures
the Blessings of Liberty and promotes the general Welfare?" The
answer given was not "a huge centralized federal
government with unlimited powers," but rather a limited federal
government that has only a few powers enumerated in the
constitution, with the rest of government remaining with the states. The
Tenth Amendment in the Bill of Rights summarizes the philosophy of the
Constitution:
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
In Federalist
45, Madison described the relationship between
the federal government and the states in these famous words:
The powers delegated by the proposed Constitution to the federal
government, are few and defined. Those which are to remain in
the State governments are numerous and indefinite. The former
will be exercised principally on external objects, as war, peace,
negotiation, and foreign commerce; with which last the power of
taxation will, for the most part, be connected. The powers reserved to
the several States will extend to all the objects which, in the
ordinary course of affairs, concern the lives, liberties, and
properties of the people, and the internal order, improvement, and
prosperity of the State. [emphasis added]
And nobody believed that the state governments had the authority to
nationalize production of computers, automobiles, and groceries.
Government on all levels was tightly limited, and liberty extended to
The People and their businesses.
This is the theory of constitutionally-enumerated
powers. Only powers enumerated in the Constitution are possessed by
the federal government.
But doesn't the "promote the general welfare" clause
indicate that the federal government has vast, sweeping powers to do
whatever is necessary to "promote the general welfare?"
In
testimony before Congress, CATO Institute scholar Jerry Taylor
explained how the architects of the Constitution understood the
"general Welfare" phrase:
| In Federalist No. 41, Madison summarizes the
relationship of the general preface language including the
"welfare" language, to the subsequent more detailed
enumeration of specific powers, as follows.
"Some who have denied the necessity of the power
of taxation [to the Federal government] have grounded a
very fierce attack against the Constitution, on the
language on 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 defense or general welfare. No stronger
proof could be given of the distress under which these
writers labor for objections, than their stooping to
such a misconstruction." (emphasis added)
Thus, Madison, who like Story after him sought to defend
federal power, treats with derision the claim of opponents of
federal powers the claim that the "welfare clause"
is a general grant of power. Madison continues Federalist No
41 in this language of angry paradox:
"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 or more common than first to use a
general phrase, and then to explain and qualify by an
enumeration of the 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 ... what
would have been thought of that assembly, if, attaching
themselves to these general expressions and disregarding
the specifications which limit their import, they had
exercised an unlimited power of providing for the general
welfare?" (emphasis added)
|
More information on the "general Welfare" clause can be
found on our Constitution
page, and this
article by Joe Sobran. Sobran explains how Alexander Hamilton joined
Madison in opposing the "General Welfare" theory of
government:
| 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. |
|
Our listener mentions three functions which are necessary to secure
"the Blessings of Liberty":
The first question to be asked is, must education etc. be provided by
the government, or can it be provided by the Free
Market: voluntary associations, businesses, and "We the
People" networking together to assure that children are educated.
In other words, which political theory is true: capitalism or socialism?
If socialism is true, we might still ask, should state and local
governments decide how children will be educated, or should that be
done by the federal government? In other words if only government
can provide these elements of an orderly and prosperous society, which
level of government?
The Constitutional answer precludes the federal government from
involving itself in these areas. It would not have been ratified by
states jealous to protect their own powers, or The People jealous to
protect their liberties, if it gave to the federal government such
sweeping powers.
Things Have Changed
Here (on the left) is Hamilton's discussion of "states'
rights" from Federalist
Paper 17. He is attempting to justify the Constitution by showing
how the new federal government will not assume state authority. He was
very much mistaken:
| The superiority of
influence in favor of the particular governments would result
partly from the diffusive construction of the national government,
but chiefly from the nature of the objects to which the attention
of the State administrations would be directed. |
|
| It
is a known fact in human nature, that its affections are
commonly weak in proportion to the distance or diffusiveness of
the object. Upon the same principle that a man is more attached to
his family than to his neighborhood, to his neighborhood than to
the community at large, the people of each State would be apt to
feel a stronger bias towards their local governments than towards
the government of the Union; unless the force of that principle
should be destroyed by a much better administration of the latter. |
Americans today seem
to set their affections on distant celebrities, sports heroes, and
government officials. More Americans are attached to Barack Obama,
Paris Hilton, and Tiger Woods than they are to their local
sheriff.
Has "human nature" changed?
No, Hamilton is talking about human beings in a Christian
nation. Mothers in a Christian nation are more attached to family
than to Britney Spears. Not so in a secular nation. Regenerated
human nature is different from atheistic human nature.
Attachment to Bill Clinton is certainly not due to "a much
better administration" vis-à-vis the states. In a
secular nation, the goal of "better administration" of
government which Hamilton had does not exist. |
| This strong
propensity of the human heart would find powerful auxiliaries in
the objects of State regulation. |
|
| The variety of more
minute interests, which will necessarily fall under the
superintendence of the local administrations, and which will form
so many rivulets of influence, running through every part of the
society, cannot be particularized, without involving a detail too
tedious and uninteresting to compensate for the instruction it
might afford. |
The assumption here
is that of "enumerated powers" -- namely, that the
federal government doesn't have many, and the states have by far
the most. |
| There is one
transcendant advantage belonging to the province of the State
governments, which alone suffices to place the matter in a clear
and satisfactory light,--I mean the ordinary administration of
criminal and civil justice. This, of all others, is the most
powerful, most universal, and most attractive source of popular
obedience and attachment. It is that which, being the immediate
and visible guardian of life and property, having its benefits and
its terrors in constant activity before the public eye, regulating
all those personal interests and familiar concerns to which the
sensibility of individuals is more immediately awake, contributes,
more than any other circumstance, to impressing upon the minds of
the people, affection, esteem, and reverence towards the
government. This great cement of society, which will diffuse
itself almost wholly through the channels of the particular
governments, independent of all other causes of influence, would
insure them so decided an empire over their respective citizens as
to render them at all times a complete counterpoise, and, not
unfrequently, dangerous rivals to the power of the Union. |
This is a fascinating
paragraph.
Nobody today has this kind of respect for law enforcement. And
law enforcement does not have the kind of paternalistic
educational function it once had. ("paternalistic" used
in a complimentary, rather than derogatory, way)
The sources of this disrespect are two: the rebellion against
authority in the 1960's, and widespread police corruption that has
been increasing since then.
But there is also growing impersonalism that accompanies a
flight from personal responsibility and a desire for the State to
be our savior. |
| The operations of the
national government, on the other hand, falling less immediately
under the observation of the mass of the citizens, the benefits
derived from it will chiefly be perceived and attended to by
speculative men. Relating to more general interests, they will be
less apt to come home to the feelings of the people; and, in
proportion, less likely to inspire an habitual sense of
obligation, and an active sentiment of attachment. |
Robert Nisbet, remarked
in an autobiographical passage in one of his books that when he
was born, in 1913, the only contact that most Americans had with
the Federal Government was the Post Office. In
1750, that was most Americans' only contact with the British
government, a fact well understood by Benjamin Franklin, the
nation's deputy postmaster general in 1752. He used this office to
establish an inter-colonial network of personal contacts.
Americans
today spend more time in front of the TV or Internet than they do
at the local donut shop, so they have less contact with local law
enforcement. The Liberal Media lionizes the federal government,
and this is what most people see. |
back to: The Constitution
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