Tag Archives: James Madison

Debating the General Welfare Clause

The General Welfare Clause

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…


The General Welfare Clause is one of the most distorted and misunderstood parts of the Constitution.  A lot of people today – including the Supreme Court – will tell you that it grants the federal government a separate power to provide for the “general welfare of the United States.”  In other words, that Congress has the authority to do whatever is in the best interests in the country.

It seems like common sense that no one who was trying to create a limited government would decide to give Congress this kind of broad, unrestricted power.  Despite that, this can be a tricky topic to debate.  To help you the next time you have to explain the obvious to someone, I’ve prepared a crash course for you on the General Welfare Clause.

Below is an explanation of the meaning of the General Welfare Clause, along with four reasons why is simply cannot be a separate grant of power – all broken down into individual arguments that you can use.

What does the General Welfare Clause mean?

- This clause has two parts – a power and a purpose.  The first half grants the power to “lay and collect Taxes, Duties, Imposts and Excises”.  The second half gives the purpose that this power is to be used for – “to pay the Debts and provide for the common Defence and general Welfare.”

“Is this an independent, separate, substantive power, to provide for the general welfare of the United States?  No, sir.  They can lay and collect taxes, etc.  For what?  To pay the debts and provide for the general welfare.  Were this not the case, the following clause would be absurd.  It would have been treason against common language.”

Edmund Randolph, June 15, 1788

- The General Welfare Clause is actually a restriction on Congress rather than a grant of broader power.  It is a clarification that the power to lay taxes, etc is to be used for the general welfare (the good of the whole country) rather than the specific welfare (a certain state, region, group, etc.).

- In other situations in life, the meaning of a clause like this would be obvious.  For example, imagine that parent leaves a note for his teenage son that reads:

“You have permission to use the car keys and the $20 that are laying on the table, go to the football game and have a good time. ”

It’s pretty clear that the son is being given permission to use the keys and the money for the purpose of going to the football game.  No one in their right mind would argue that “have a good time” is a separate grant of permission for the boy to do whatever he thought would be fun.  But the way that the General Welfare Clause is currently interpreted would be like the son in this example going to an all night drinking party and then claiming, “But you said I had permission to have a good time!”

Why grant specific powers if there is a grant of “general” power?

The Founders put a lot of time and effort into deciding exactly which powers would be granted to the new federal government.  It makes absolutely no sense to waste all that time on specifics if they were just going to turn around and grant the government the virtually unlimited power to provide for the general welfare.

James Madison made the same point:

“But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace not only all the powers particularly expressed, but the indefinite power which has been claimed under them, the intention was not so declared? why, on that supposition, so much critical labour was employed in enumerating the particular powers, and in defining and limiting their extent?”

James Madison, Nov. 27, 1830

If it is a separate power this clause creates unlimited government power

- Creating a limited federal government was one of the central purposes for writing the Constitution.  But granting the authority to provide for the general welfare would have resulted in a government of unlimited power.

We can now see for ourselves that this is true.  The Supreme Court has decided that this clause does grant the power to provide for the general welfare – because of that most of our public officials believe that the General Welfare Clause justifies anything they want to do.  Can you think of one area of your life that current members of Congress don’t feel is their business?

“If the clause, “to pay the debts and provide for the common defence and general welfare of the United States,” is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and it creates a general authority in congress to pass all laws, which they may deem for the common defence or general welfare.  Under such circumstances, the constitution would practically create an unlimited national government.”

Joseph Story, Commentaries on the Constitution

- Can you think of a law that couldn’t be justified under a power to whatever is in the best interests of the country?

“[F]or what is the case that would not be embraced by a general power to raise money, a power to provide for the general welfare, and a power to pass all laws necessary and proper to carry these powers into execution […] Can less be said, with the evidence before us furnished by the journal of the Convention itself, than that it is impossible that such a Constitution as the latter would have been recommended to the States by all the members of that body whose names were subscribed to the instrument?”

James Madison, Nov. 27, 1830

- If the intent of the Founders was to create a limited federal government, then granting a power to provide for the general welfare wouldn’t have just been a mistake – it would have completely defeated the purpose of writing a Constitution in the first place.  They were far to intelligent to do something nonsensical like this.

As a separate grant of power this clause would be inconsistent with the rest of the Constitution

- The 10th Amendment states that:

“The powers not delegated to the United States by the Constitution […] are reserved to the States respectively, or to the people.”

If the General Welfare Clause is interpreted the way it is today and means that the federal government has the power to do what’s in the best interests of the country, this amendment makes no sense.  Apparently – based on that interpretation – four years after the Constitution was written the Founders felt the need to pass an amendment to make sure everyone knows that the states have the power to do everything that’s not in the general welfare of the country.  So… the states have the authority to do whatever is bad for the country.  (On second thought, it may explain a lot about California and Illinois…)

- Nowhere else in life do we take one phrase out of over 7,000 words and assume it has a meaning that completely contradicts the rest of the document.  The entire Constitution was written to carefully limit the power and scope of the government.  So it is completely illogical to interpret the General Welfare Clause as granting the authority to do whatever is in the best interests of the country.

“On the other hand, construing this clause in connexion with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative.  It becomes a qualification of that clause, and limits the taxing power to objects for the common defence or general welfare.  It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation.”

Joseph Story, Commentaries on the Constitution

None of the Founders objected to this clause

- The authority to provide for the general welfare would have been a massive grant of power to the federal government.  Yet somehow, none of the Founders objected to the General Welfare Clause during the Constitutional Convention:

“That the terms in question were not suspected in the Convention which formed the Constitution of any such meaning as has been constructively applied to them, may be pronounced with entire confidence; for it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant and cautious definition of Federal powers should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.”

James Madison, Nov. 27, 1830

- The states – many of which were concerned about being overrun by the power of the new federal government – didn’t object either.  Of all the 189 amendments that were suggested to be a part of the new Bill of Rights, none of them mentioned the General Welfare Clause:

“Here are a majority of the States proposing amendments, in one instance thirty-three by a single State; all of them intended to circumscribe the powers granted to the General Government, by explanations, restrictions, or prohibitions, without including a single proposition from a single State referring to the terms common defence and general welfare; which, if understood to convey the asserted power, could not have failed to be the power most strenuously aimed at, because evidently more alarming in its range than all the powers objected to put together; and that the terms should have passed altogether unnoticed by the many eyes which saw the danger in terms and phrases employed in some of the most minute and limited of the enumerated powers, must be regarded as a demonstration that it was taken for granted that the terms were harmless, because explained and limited, as in the “Articles of Confederation,” by the enumerated powers which followed them.”

James Madison, Nov. 27, 1830

Help Wanted: Conservative Statesmen

The Tea Party is getting larger and stronger all the time. It is now a force to be reckoned with in Congress, in state legislatures across the fruited plain, and in the daily news cycle. Yet it lacks one thing. One thing that if present would take it from a force to be reckoned with to an irresistible force. What the Tea Party lacks is the one thing the Founding Fathers had in abundance. And what is that? Statesmen. People like Samuel Adams and Patrick Henry were integral to the American Revolution and the establishment of the Constitution. The Tea Party lacks the latter-day equivalents of Thomas Jefferson, John Adams, Benjamin Franklin, George Washington and James Madison. Politicians the Tea Party has aplenty. Statesmen, though, are sorely lacking.

Using the Tea Parties analogy to the American Founding, I think you can fairly compare people like Palin and Bachmann to Henry and Sam Adams. That isn’t enough though. We need people like Paul Ryan, and yes, Chris Christie (even if I am not completely sold on him). People who are sensible and pragmatic and educated and experienced. If we want real change, I think the founding of our country is a good model to look at. Hopefully, we can avoid a physical revolution. I believe the founders died so we wouldn’t have to go there. But they do provide a good model for getting things back on the right track. We should look at the whole model. If things had ended in Boston Harbor, we would still be a protectorate of the United Kingdom right now. That isn’t good enough. – ALRMCoug

In response to ALARMCoug’s blog post, HighHorse came back with this bit of analysis concerning the Tea Party:

There is no Samuel Adams on the scene in America today. The centrist Republican establishment sees to it that a modern day Samuel Adams or Thomas Jefferson will not get anywhere in America.

Your example is interesting because Samuel Adams, John Adams, Thomas Jefferson and James Madison were known radicals even in that day. The Tea Party of today is radical as were those guys mentioned. We can expect a watered down version that will never create real change in our country. Moderates will see to it that the true radicals never have representation.

It isn’t just bloggers that recognize the need for leaders of our nation who possess the qualities found in such abundance among those who brought forth the United States of America. Academics see it as well:

The raising up of that constellation of “wise” Founding Fathers to produce America’s remarkable Constitution, whose rights and protection belong to “every man,” was not a random thing…. One historian called our Founding Fathers “the most remarkable generation of public men in the history of the United States or perhaps of any other nation” (Arthur M. Schlesinger, The Birth of the Nation [1968], 245). Another historian added, “It would be invaluable if we could know what produced this burst of talent from a base of only two and a half million inhabitants” (Barbara W. Tuchman, The March of Folly: From Troy to Vietnam [1984], 18). – Neal A. Maxwell

Furthermore, the Founding Fathers recognized for themselves the remarkable nature of the founding of this nation. Describing the drafting of the U.S. Constitution. In a 1788 letter to Lafayette, he said:

“It appears to me, then, little short of a miracle, that the delegates from so many different states (which states you know are also different from each other in their manners, circumstances, and prejudices) should unite in forming a system of national Government, so little liable to well-founded objections.” 3

It was a miracle. Consider the setting.

The thirteen colonies and three and one-half million Americans who had won independence from the British crown a few years earlier were badly divided on many fundamental issues. Some thought the colonies should reaffiliate with the British crown. Among the majority who favored continued independence, the most divisive issue was whether the United States should have a strong central government to replace the weak “league of friendship” established by the Articles of Confederation. Under the Confederation of 1781, there was no executive or judicial authority, and the national Congress had no power to tax or to regulate commerce. The thirteen states retained all their sovereignty, and the national government could do nothing without their approval. The Articles of Confederation could not be amended without the unanimous approval of all the states, and every effort to strengthen this loose confederation had failed.

Congress could not even protect itself. In July 1783, an armed mob of former Revolutionary War soldiers seeking back wages threatened to take Congress hostage at its meeting in Philadelphia. When Pennsylvania declined to provide militia to protect them, the congressmen fled. Thereafter Congress was a laughingstock, wandering from city to city.

Unless America could adopt a central government with sufficient authority to function as a nation, the thirteen states would remain a group of insignificant, feuding little nations united by nothing more than geography and forever vulnerable to the impositions of aggressive foreign powers. No wonder the first purpose stated in the preamble of the new United States Constitution was “to form a more perfect union.”

The Constitution had its origin in a resolution by which the relatively powerless Congress called delegates to a convention to discuss amendments to the Articles of Confederation. This convention was promoted by James Madison and Alexander Hamilton, two farsighted young statesmen still in their thirties, who favored a strong national government. They persuaded a reluctant George Washington to attend and then used his influence in a letter-writing campaign to encourage participation by all the states. The convention was held in Philadelphia, whose population of a little over 40,000 made it the largest city in the thirteen states.

As the delegates assembled, there were ominous signs of disunity. It was not until eleven days after the scheduled beginning of the convention that enough states were represented to form a quorum. New Hampshire’s delegation arrived more than two months late because the state had not provided them travel money. No delegates ever came from Rhode Island.

Economically and politically, the country was alarmingly weak. The states were in a paralyzing depression. Everyone was in debt. The national treasury was empty. Inflation was rampant. The various currencies were nearly worthless. The trade deficit was staggering. Rebelling against their inclusion in New York State, prominent citizens of Vermont had already entered into negotiations to rejoin the British crown. In the western territory, Kentucky leaders were speaking openly about turning from the union and forming alliances with the Old World.

Instead of reacting timidly because of disunity and weakness, the delegates boldly ignored the terms of their invitation to amend the Articles of Confederation and instead set out to write an entirely new constitution. They were conscious of their place in history. For millennia the world’s people had been ruled by kings or tyrants. Now a group of colonies had won independence from a king and their representatives had the unique opportunity of establishing a constitutional government Abraham Lincoln would later describe as “of the people, by the people, and for the people.”

The delegates faced staggering obstacles. The leaders in the thirteen states were deeply divided on the extent to which the states would cede any power to a national government. If there was to be a strong central government, there were seemingly irresolvable differences on how to allocate the ingredients of national power between large and small states. As to the nature of the national executive, some wanted to copy the British parliamentary system. At least one delegate even favored the adoption of a monarchy. Divisions over slavery could well have prevented any agreement on other issues. There were 600,000 black slaves in the thirteen states, and slavery was essential in the view of some delegates and repulsive to many others.

Deeming secrecy essential to the success of their venture, the delegates spent over three months in secret sessions, faithfully observing their agreement that no one would speak outside the meeting room on the progress of their work. They were fearful that if their debates were reported to the people before the entire document was ready for submission, the opposition would unite to kill the effort before it was born. This type of proceeding would obviously be impossible today. There is irony in the fact that a constitution which protects the people’s “right to know” was written under a set of ground rules that its present beneficiaries would not tolerate.

It took the delegates seven weeks of debate to resolve the question of how the large and small states would be represented in the national congress. The Great Compromise provided a senate with equal representation for each state, and a lower house in which representation was apportioned according to the whole population of free persons in the state, plus three-fifths of the slaves. The vote on this pivotal issue was five states in favor and four against; other states did not vote, either because no delegates were present or because their delegation was divided. Upon that fragile base, the delegates went forward to consider other issues, including the nature of the executive and judicial branches, and whether the document should include a bill of rights.

It is remarkable that the delegates were able to put aside their narrow sectional loyalties to agree on a strong central government. Timely events were persuasive of the need: the delegates’ memories of the national humiliation when Congress was chased out of Philadelphia by a mob, the recent challenge of Shay’s rebellion against Massachusetts farm foreclosures, and the frightening prospect that northern and western areas would be drawn back into the orbit of European power.

The success of the convention was attributable in large part to the remarkable intelligence, wisdom, and unselfishness of the delegates. As James Madison wrote in the preface to his notes on the Constitutional Convention:

“There never was an assembly of men, charged with a great and arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them.” – Dallin H. Oaks

The Tea Party has its heroes to be sure:

  • Chris Christie is a fiscal genius who is reclaiming the State of New Jersey from the leftist teachers union in that state.
  • Governor Scott Walker made history as he disemboweled the public employee unions in Wisconsin.
  • Justice David Prosser of the Wisconsin State Supreme Court beat back a socialist candidate in dramatic fashion.
  • Sarah Palin is a continual thorn in Barack Obama’s side with her instantly classic Facebook posts.
  • Rush Limbaugh bedevils the progressives so much that he is their inspiration to attempt to take away our Freedom of Speech and Freedom of the Press.
  • Paul Ryan’s deficit reduction bill is so powerful that the socialists are compelled to lie about it in order to try to convince independent voters that it is evil. And we all know that the independents are the block of voters who decide elections in this country.
  • Donald Trump has revived the argument about Obama’s missing birth certificate. Stay tuned, this issue isn’t over yet!
  • Michele Bachmann is such a powerful conservative voice that she has a real shot at the Republican nomination for president in 2012.

But still, the Tea Party is missing its statesmen. We are talking about leaders of the stature of Winston Churchill, Mohandas Karamchand Ghandi, Benjamin Disraeli, and yes, Benjamin Franklin. Where are the leaders for our time? Surely we can do better than the RINO Jon Huntsman. Do we really think that Tim Pawlenty is in the same league as James Madison? Does the thought of Mitt Romney as president inspire comparisons to John Adams? Barack Obama Lite is not what this country needs. Obama is not less-filling and he sure doesn’t taste great, either.

The Tea Party needs leaders of unabashed conservatism. The Tea Party needs leaders with the courage of their convictions. The Tea Party needs leaders who respect the Constitution and who are willing to fight in defense of that inspired document of freedom. The Tea Party seeks God-fearing leaders who recognize that the State is subservient to Him who land this is. The Tea Party needs a charismatic, humble, yet strong leader who exudes confidence in the defense of liberty. The Tea Party needs the second coming of the Founding Fathers.

If Obama is to be defeated in the 2012 elections then the Tea Party must produce a leader who can rally the conservative troops. A divided conservative base will lose the election. An energized conservative base will sweep Obama into the ash heap of history. Let us pray we find our statesman before it is too late.