Sobran Column -- The “General Welfare”
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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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