Constitutional Purposes of Taxation
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 Original Controversy
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.
Hamilton's Broad Interpretation
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].
The Supreme Court and the General Welfare Provision
Following his election in 1932, and the implementation of his so-called New Deal policies, much of President Franklin Roosevelt's legislation was challenged as unconstitutional. A majority on the Court, who had been appointed by Republicans, began declaring cornerstones of the New Deal unconstitutional in 5-4 decisions. This infuriated Roosevelt and he threaten to pack the Court with justices who would be more "sympathetic" to his New Deal legislation.
In 1936, in the case of U.S. v. Butler, the scope of the general welfare clause indirectly reached the United States Supreme Court in a challenge to the Agricultural Adjustment Act of 1933. Justice Roberts, speaking for the Court:
"Since the formation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section, that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each connection has had the support of those whose views are entitled to weight. This court had noticed the question, but has never found it necessary to decide which is the true construction.
We are not now required to ascertain the scope of the phrase 'general welfare of the United States'.'"
Justice Roberts continued by stating:
"Justice Story, in his Commentaries [on the Constitution], espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of Section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution."
Although this statement was not the holding of the case, and the Court again ruled against the New Deal in a 5-4 decision, it laid the foundation for Congress to exercise additional taxing and spending power through the general welfare clause.
A little over a year after the Butler decision, the Supreme Court decided another case that dealt specifically with the general welfare clause. This case involved a challenge to various provisions of the Social Security Act of 1935. Since there was no authority for such a scheme, the federal government had to find a way to bring it under the umbrella of a clause in the Constitution. That clause was the general welfare provision. Citing the Butler case as precedent, the Court, in Helvering v. Davis, sustained the constitutionality of the Act in a 5-4 decision:
"Congress may spend money to aid in the 'general welfare.' There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision... The conception of the spending power advocated by Hamilton and strongly reinforced by Story, has prevailed over that of Madison, which has not been lacking in adherents [supporters]."
The Court erroneously stated that the issue was settled by decision. The Butler Court's statement on the general welfare provision was purely dictum because the case was decided on another issue.
Continuing, the Davis Court went on to state:
"The line must be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a penumbra [uncertainty] in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment... What is critical or urgent changes with the times."
Congress, according to the Court, has the subjective authority, unrestrained by the judiciary, to declare what constitutes the general welfare irrespective of whether that determination corresponds to any of the other enumerated powers granted to the federal government by the Constitution. And, to add insult to injury, the Court, in another decision, made it almost impossible for the States or the American people to challenge the power of Congress under this provision.
The Court was Intelligently Dishonest
To assert that Congress has the subjective authority to declare what constitutes the general welfare when the Constitution established a federal government of limited enumerated powers was intelligently dishonest to say the least. If the Court had not been looking for a way to unconstitutionally expand federal power under the guise of judicial review, it could have resolved this question by simply resorting to Federalist Essay No. 45 where Madison distinguished the external powers granted to the federal government from the domestic powers reserved to the States:
"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.
The operations of the federal government will be most extensive and important in times of war and danger, those of the State governments in times of peace and security."
As stated by Madison, the powers of the federal government do not extend to the life, liberty or property of the American people. Thus, under the system of government established by the Founders, Congress could not have the subjective authority to declare what constitutes the general welfare because the federal government does not have general legislative authority over internal or domestic affairs.
Congress is Usurping Power
Irrespective of which interpretation the reader accepts as correct, there is one fact that cannot be disputed---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.
If the reader will recall, Hamilton asserted that there were strict limitations to Congress' 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.
comments and feedback are welcome!
Some other, related reading:
Now Available! See Editor's review here.
of Rights Does Not Grant You Any Constitutional Rights"
$10.00-includes shipping and any applicable sales tax.
Email any questions concerning the book/booklet to Bob at-govtnitwit [at] yahoo.com
Greenslade focuses his writing on issues surrounding the federal government
and the Constitution. He believes politicians at the federal level, through
ignorance or design, are systematically dismantling the Constitution in
an effort to expand their power and consolidate control over the American
people. He has dedicated himself to resurrecting the true intent of the
Constitution in the hope that the information will contribute, in some
small way, to restoring the system of limited government established by
If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob
Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the constitution. Mr. Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.
Please see the bottom of the page for Bob's book offer.