Say Anything Blog

In a previous post, I described how the Federal government had used extreme liberal interpretations of the Interstate Commerce Clause of the US Constitution to regulate any commerce that was even remotely considered to be interstate commerce.  The other side of the governments constitutional overreach is associated with extreme liberal interpretations of the General Welfare clause.

The general welfare clause is the last part of Article I, Section 8, Clause 1 of the Constitution. This provision grants Congress the power “[t]o 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.”

Pursuant to this Clause, Congress can only impose taxes for three purposes. First, to “pay the debts… of the United States.” This provision was inserted, primarily, to give the federal government the ability to extinguish the existing debts of the United States [pre Constitution] and was not intended to grant Congress the discretionary power to incur new debts. Second, to “provide for the common Defense… of the United States.” This provision enumerates the primary purpose of the federal government and grants Congress the power to raise the needed revenue. Third, to “provide for the general welfare of the United States.”  This provision, which was intended to limit the ability of Congress to tax and spend, has been radically expanded, with the help of the federal judiciary, and is now the constitutional basis for the myriad of federal spending programs that consume the bulk of the taxes extracted from the American people every year. It should be noted that if the
federal government was not usurping power through this clause and spending money like drunken sailors, there would be no need for a federal income tax.

The introduction of this clause in the constitution was controversial with James Madison opposing anything but the narrowest interpretation.

Following the close of the Federal Convention of 1787, a controversy arose over the meaning of the general welfare phrase. The Anti-Federalists, who opposed ratification of the proposed constitution, were vehemently opposed to this provision because they believed it was an abstract term and Congress alone would determine its scope and meaning. They also asserted that this provision amounted to an unlimited grant of legislative power.

The Federalists asserted that its critics had misconstrued the construction of this
provision. James Madison, who is recognized as the father of the Constitution, argued that the general welfare phrase was a qualifying term, not an independent grant of power. He claimed the general welfare provision could not be construed as an unlimited grant of legislative power because it was followed by an enumeration of particular powers. Since the federal government was a government of limited powers, Madison asserted the power to tax and spend was confined to the enumerated legislative fields committed to Congress by the Constitution.

Alexander Hamilton was on the other side of the argument although his interpretations were also somewhat limiting.

In his 1791 “Report on Manufactures,” Alexander Hamilton asserted the general welfare provision conferred a power separate and distinct from the specific grants of legislative power contained in the Constitution. He also claimed the specific grants of legislative power did not qualify or limit the meaning of the general welfare phrase. Therefore, Congress, according to Hamilton, had an independent and unspecified power to tax and appropriate money for the general welfare.

Even though Hamilton asserted that the appropriation of money for the general welfare is
totally within the discretion of Congress, he cautioned that there are several limitations
on this power. First, the appropriation must be applied to the whole [general] and cannot be local or particular. Second, Congress cannot use this provision as a pretext to legislate
for the general welfare generally. It can only tax and spend for the general welfare of the
United States. Third, Congress cannot use the power of appropriation to do things not
authorized by the Constitution, “either expressly or by fair implication.” It should be
noted that Hamilton did not profess this interpretation in his writings in the Federalist
Essays [1787-1788].

Even with slightly broader interpretations, the govenment largely stayed within its desiginated constitution limits until Franklin Roosevelt’s New Deal era.

Few americans realize that up until 1937 the Congress of the United States conducted its
business within the boundaries of seventeen enumerated powers granted under Article I
Section 8 of the United States Constitution. [Appx. 1] these powers defined clearly the
areas of national purposes over which Congress could enact legislation including the
allocation of funds and levying of taxes. Anything not set down in the enumerated powers was considered outside the purview of the national government and hence, a matter for the
states. There were occasional challenges to the concept but it was not until Franklin Roosevelt’s new deal that it was attacked in deadly earnestness.

Initially the supreme court resisted FDR’s New Deal welfare measures but when FDR threatened to get his way by stacking the court with new appointees loyal to him, the court caved in.

The supreme court at the time consisted of four conservatives, three liberals, one moderate, and one swing. The liberals were; Stone, Cardozo and Brandeis. The conservatives were: McReynolds, Sutherland, Butler, and Van Deventer. The moderate was Hughes. The swing was Roberts.

Hughes prevailed on Roberts to desert the conservative camp, swing over with him and join
the three liberals in declaring the social security cases [Steward Machine Co. v. Davis (301
us 548, May 24, 1937)] Constitutional.[4] [P.56] This Roberts did, and by so doing, took the
wind from the sails of the President’s court packing plan. It went back to committee and
died. one Administration official called the court’s action, “the switch in time that saved
nine.” 

This decision said in effect, Congress would no longer be held to enumerated powers but instead could tax and spend for anything; so long as it was for “general welfare.”

Following the New Deal, Congress stayed relatively quiet largely because of the war and conservative presidents, than along came Lyndon Johnson and the Great Society.

Nothing much happened immediately after these decisions because of WW II; then post war reconstruction with a strong conservative Republican leadership under Bob Taft and a
coalition of conservative democrats;  then Korea; then the Eisenhower years; then Kennedy
[who basically was a fiscal conservative]; then Dallas; then Lyndon B. Johnson and the Great Society, [1965] the arrival of which signaled the commencement of the full implementation of “Stewart Machine Co. v. Davis”—1937.

Until this time, the American people’s demands on government were modest and for the most part the government lived within its means. But LBJ and his cohorts, both Democrat and moderate Republican, said in effect, “damn the enumerated powers, full speed ahead.” Something for everyone: spend now, pay later.

The government’s constitutional constraints have been removed releasing a flood of welfare measures into our society at increasing costs and debts Which are currently culminating into the biggest government power grab of all.  We have lived through FDR’s New Deal and LBJ’s Great Society but it’s questionable that constitutional government will survive under Barak Hussein Obama’s totalitarian rule.

Congress is blatantly usurping power under this provision in order to expand and consolidate
its control over the American people. In fact,  Congress is so driven by power that it cannot
even stay within the constraints of the expanded interpretation espoused by Hamilton and
adopted by the Supreme Court.

Hamilton asserted that there were strict limitations to Congress’s power to tax and appropriate money under the general welfare provision. First, the appropriation must be applied to the whole [general] and cannot be local or particular. This constitutional restriction alone wipes out the majority of the taxes Congress imposes each year because the money is then appropriated to fund congressional pet projects that are local or particular in nature. Second, Congress cannot use the power of appropriation to do things not authorized by the Constitution, “either expressly or by fair implication.”

It is a cardinal principle of constitutional law that Congress cannot, under the pretext of
executing a delegated power, pass laws for the accomplishment of objects not entrusted to
the federal government. Congress has completely ignored all of the limitations on its power.

Wake-up America—-the reprobates in Congress are stealing you blind and bankrupting the nation all in the name of the general welfare and the Supreme Court has made it almost impossible to stop them.

References:
The General Welfare Clause
General Welfare Clause
The Price of Liberty