The Great Debate, Part 1: The General Welfare Clause

There’s been a debate raging in this country ever since the U.S. Constitution was ratified in 1788. The debate is over how much or how little the federal government should be allowed to do. This long-simmering discussion appears to be bubbling once again to the forefront with passionate arguments for and against national healthcare, tea party protests, and state sovereignty resolutions.

As I see it, the question boils down to this: Is the federal government to be a small government with a few enumerated powers or an expansive government with a few enumerated restrictions? Both sides of the argument say they support the Constitution, but they interpret it in very different ways.

The first camp (in which the author includes himself) interprets the Constitution as giving the federal government only a handful of duties and specifically denying it the ability to do any other. We see the Bill of Rights (the first ten amendments added after ratification) as mere dummy-proofing: backup insurance in case the government should happen to “get too big for its britches” (to use my grandmother‘s phrase).

We like to point out the 10th Amendment, the “exclamation point on the Constitution” as 10th Amendment activist Michael Boldin calls it, which states, “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.”

The second camp, let‘s call them “Expansionists,” interpret the Constitution as giving the federal government carte blanche to conduct whatever measures it deems necessary at the time. They often see the Constitution as a “living document” which can bend with the times. To their credit, many in this camp zealously defend the rights enumerated in the Bill of Rights (except the Second and Tenth Amendments), which they view as the only few restrictions upon government power.

The big government interpretation of the Constitution relies heavily on two clauses therein.

The first is the “general welfare clause” of the Constitution’s Article 1, Section 8. The Expansionists read the clause thusly, “The Congress shall have power to […] provide for the common defense and general welfare of the United States[.]” But if we read it in it’s entirety, it’s a little different.

The full clause reads: “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[.]” The clause is clearly about taxes. It mentions “duties, imposts and excises” both before and after it’s reference to the “general welfare.” Taxes are the "what" of the clause, to provide for the general welfare is merely the "why." The clause gives Congress power to levy various taxes, nothing more.

As Roger Pilon, founder and director of Cato Institute’s Center for Constitutional Studies, put it during testimony before Congress, “The general welfare clause […] was also intended […] to ensure that Congress, in the exercise of any of its enumerated powers, would act for the general rather than for any particular welfare.” [Emphasis added.]

If the general welfare clause meant that Congress was granted the power to enact any law it deemed to be for the good of the country, it would be wholly unnecessary for the Constitution to then list other powers granted to Congress. Yet this is exactly what the Constitution proceeds to do.

Next time we’ll look at one of these enumerated powers that Article 1, Section 8 goes on to list (the “commerce clause”), and see how it’s meaning has been stretched as well.