Ron Paul, Spitzer, and the General Welfare Clause

In view of the following exchange between Ron Paul and Elliot Spitzer, we should revisit the meaning of the Constitution’s “general welfare” clause.  Take a look:

Let’s say you are an account receivables worker in a small business.  On your first day on the job, your boss walks up to you and says “Jimmy, as an accounts receivables manager at this company, you have the power to charge our clients and send them bills to provide the operating income of our widget factory, to pay our debts, and to provide for the general welfare of this company, but all bills you send out must be according to the the number and price of widgets that the client has purchased.”

Did your boss just give you permission to set up a retirement plan for all the company’s workers?  Modern constitutional law scholars say yes, but Thomas Jefferson thinks they’re wrong.

Article 1, Section 8 defines the powers of congress in a list of clauses.  Clause 1 contains the infamous “general welfare” clause, and reads as follows:

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; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The meaning of the “general welfare” portion of Clause 1 was an issue untouched for 146 years by the Supreme Court, until 1936 when FDR started passing programs under the New Deal that were unconstitutional. The Supreme Court broadened the clause in United States v. Butler, 297 U. S. 1, 65-66 (1936) by essentially pointing out that Jeffersonians and Hamiltonians have disagreed over the meaning of “general welfare,” and that, in retrospect, Hamilton was correct — without offering any meaningful analysis other than that the justices in the majority read the writings of a dead associate justice of the Supreme Court (Justice Story) whose views on the “general welfare” clause had theretofore not prevailed:

Since the foundation 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 contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, 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 Mr. 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 § 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.

Nevermind that the text of the Constitution very plainly does not grant Congress the power to do anything and everything for the “general welfare” of the United States–it only provides a power to tax.  It should not be necessary to deploy intellectual histrionics to understand this simple sentence.

Thomas Jefferson agreed:

[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.

Letter from Thomas Jefferson to George Washington on the Constitutionality of the Bank of the United States, 1791.

What was Hamilton’s argument on the “general welfare” clause?  That welfare can be provided for whatever purpose so long as it is “general” and not “specific” or “local.”

[Congress has] as large a discretion in relation to the application of money as any legislature whatever. The constitutional test of a right application must always be, whether it be for a purpose of general or local nature. If the former, there can be no want of constitutional power. The quality of the object as how far it will really promote or not the welfare of the Union must be matter of conscientious discretion, and the arguments for or against a measure in this light must be arguments concerning expediency or inexpediency, not constitutional right. Whatever relates to the general order of the finances, to the general interests of trade, etc., being general objects, are constitutional ones for the Application of money.

Hamilton’s Opinion as to the Constitutionality of the Bank of the United States, 1791.  As such, Hamilton just glosses over the plain meaning of the clause — that it only confers a power to tax — and skips right to the presumption that the general welfare clause confers a power and therefore allows congress to spend on anything that “relates to general order . . . interests . . . or objects.”

Without the audience’s knowledge, Ron Paul takes Spitzer through this historical debate in the above video.  First, Ron Paul doesn’t see support in Article 1, Section 8 for Social Security, Medicaid, or Medicare — about which he is correct.  Then he points out that even under Hamilton’s interpretation, it is debatable whether sending money to individuals a “general” or “specific/local” concern.  Spitzer characterizes the distinction between “general” and “specific” welfare as being a little too “metaphysical” for him — as indeed Hamilton’s reading and arbitrary distinctions between “general” and “specific” were very metaphysical and not well bounded.

Hamilton’s view of the “general welfare” clause is unsupported by any logic he provides, contrary to plain meaning of the text, results in a Constitution without limits, should never have been nakedly adopted by the Supreme Court 150 years after the fact, and is simply wrong.

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2 thoughts on “Ron Paul, Spitzer, and the General Welfare Clause

  1. You make a decent point and re Jefferson’s requirement that the spending be for “the general welfare” and not, for example, a giant palace for each Legislator to live in when away from Washington business – or, on local “pork barrel” spending. However, to say it must genuinely be spent for “general welfare” is not the same as, to say it must be spent on one of those specific enumerated purposes like raising an army, post offices, etc. That argument must be made separately and is IMHO not clear in the writing.

    BTW when will Ron Paul get justice about the Maine balloting?

    “Fine minds make fine distinctions.”

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  2. 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; but all Duties, Imposts and Excises shall be uniform throughout the United States

    I think the main problem with the way the framers wrote the taxes clause is that it included the above-bolded wording when it is superfluous. Taking it in thirds, the first part “to pay the Debts” really does not need to be said – if you have the power to borrow, and you have the power to tax, paying the debt should be inherent. (I think it legitimately falls under the necessary and proper ambit). Likewise for “provide for the common Defence” – if you have the power to tax and the power to form a national defense, you have the power to spend money on it. But where is the Government’s power to provide for the general Welfare of the United States? One might draw the conclusion that the entire bolded portion would be better off dropped from the clause altogether.
    Regarding paying the Debts and providing for the common Defense, I see little little room to argue that their inclusion in this clause is anything other than redundant. Nevertheless, the Supreme Court, with its Supreme Blinders on, only singled out Jefferson’s view of “general welfare” as “tautological.” This is where you just have to roll your eyes.

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