Has the federal government risen above its constitutional right to tax and spend billions of dollars on pork? What argument do we have which puts a seemingly all powerful federal government back in its constitutional place and restores the principle of federalism?
James Madison, the Father of the Constitution, established a concept of dual sovereignty, “…where the state and federal governments might coexist as sovereigns over the same space, representing and acting on behalf of the people of the United States, the ultimate source of authority….,” writes, Alex Kozinski and Steven Engel in an article entitled, “Recapturing Madison’s Constitution: Federalism without the Blank Check,” published in James Madison and the Future of Limited Government.
However, this political theory of federalism has come to a crashing halt, in part, due to poor interpretations, by Congress and the U. S. Supreme Courth, of what is know as the General Welfare Clause. Once again Professor Robert G. Natelson has done excellent research and published what he believes to be the true meaning of The General Welfare Clause. I have only included, in this post, his Introduction and Conclusion to his 56 page law review article with a link so that you can download the rest of the article for further reading. I have left his footnotes off this short post. [Click Here to download his excellent article]
If we are going to take the battle, for liberty, and constitutional government, as intended by the Framers, seriously and with effective arguments, we must do a little heavy reading. Enjoy!
THE GENERAL WELFARE CLAUSE AND THE PUBLIC TRUST*
By Robert G. Natelson
What think you of [Hamilton’s] commentary…on the terms “general welfare”? – The federal Gov’. has been hitherto limited to the specific powers – If not only the means but the objects are unlimited, the parchment had better be thrown into the fire at once….
-James Madison
INTRODUCTION
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: but all Duties, Imposts and Excises shall be uniform throughout the United States
This is the Taxation Clause – the first in the Constitution’s enumeration of congressional powers. It has been controversial since it first saw the day of light. The most controversial part of all has been the phrase in the middle (“to pay the Debts and provide for the common Defense and the general welfare of the United States”). It is called the General Welfare Clause, and it is the subject of this Article.
The General Welfare Clause is one of the two principal constitutional pillars supporting the modern welfare state – the other being the commerce clause. While the Commerce Clause supports most unfunded federal regulation, the General Welfare Clause is said to include an implied spending power used to justify federal spending programs and the regulatory conditions attached to them. For that reason, the General Welfare Clause is sometimes called the Spending Clause.
This Article examines the three traditional of the General Welfare Clause. These are, first, that it is a plenary grant of regulatory and spending power to Congress; second, that it is a plenary grant of spending power only; and, third, that it is not a grant of power at all. I find severe textual problems with the first and second interpretations, and my subsequent historical analysis confirms that those interpretations have little basis in original understanding. I find that the third view is the most textually sound.
Examination of history, however, shows that the General Welfare Clause is more than a mere “non-grant” of spending power. It was intended to be a sweeping denial of power – specifically, it was intended to impose on Congress a standard of impartiality borrowed from the law of trusts, thereby limiting the legislature’s capacity to “play favorites” with federal tax money.
Of course, some may argue that the United States Supreme Court already has adopted an interpretation of the General Welfare Clause, and that it has been settled for some time. An academic response is that an authoritative historical understanding of the Clause will help us assess the forces that induced the Supreme Court to get its own version wrong (or right). A practical response is this: One lesson of the late twentieth century is that in politics (of which constitutional interpretation is arguably a branch), the proposition that everything is settled is a safe bet only for losers. The world is changing too fast to take any political settlement for granted. Ask the people of East Berlin.
CONCLUSION
The current Supreme Court interpretation, the Hamiltion-Story view, stands the original meaning of the General Welfare Clause on its head. The Clause was not a qualified grant of spending authority, as Hamilton claimed. Nor did it merely point to other powers, as Story understood Madison to have said. On the contrary, the General Welfare Clause was an unqualified denial of spending authority. It did not add to federal powers; it subtracted from them.
The General Welfare Clause was designed as a trust-style rule denying Congress authority to levy taxes for any but general, national purposes. Because the Clause prevented Congress from using tax revenue for local or special interest purposes, the Clause indirectly qualified the appropriation power. Even if some enumerated power could be enlisted to support the appropriation, federal tax money was not to be used for the private benefit of a museum – however worthy – in Savannah, nor an artist – however struggling – in New York.
What was to happen if government official violated the restrictions of the General Welfare Clause? Not many of the Federalists addressed the issue. But three did. David Ramsay (“Civis”) rather naively suggested only electoral retaliation. Noah Webster suggested that remedy, but also countermeasures from the states and impeachment. At the Virginia ratifying convention, Federalist leader George Nicholas offered the answer most relevant today: [W]ho is to determine the extent of such powers? I say, the same power which, inn all well-regulated communities, determines the extent of legislative powers. If they exceed these powers, the judiciary will declare it void, or else the people will have a right to declare it void, enforcement ultimately by the courts.
*52 U. Kan. L. Rev. 1 (2003)
Dr. Natelson, has kindly, given For Freedom’s Sake, permission to make his Article available as a free downloadable PDF file. Click here to download. Please read this document and be informed as to it contents. Send it to your friends or send them here.
Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, and a seminar on the First Amendment. He is a recognized national expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution’s meaning. He has written for some of the nation’s most prestigious academic journals. Moreover, his work is frequently cited in top journals, such as Harvard Law Review, Yale Law Journal, Michigan Law Review, and Georgetown Law Journal. He also edits the web page, The Scholarship of the Original Understanding of the Constitution, www.umt.edu/law/original-understanding and collected and edited the material that forms the Documentary History of the Ratification of the Montana Constitution.
This Website is Dr. Natelson’s home site at The University of Montana
http://www.umt.edu/law/faculty/natelson.htm
This website provides a portal for selected scholarship that examines the original understanding and original meaning of the U.S. Constitution. A secondary purpose is to provide links to online resources useful to those researching the Constitution’s original understanding or original meaning.
