Carte Blanche and the General Welfare

The Constitution is a remarkable document, in conception, in purpose, in brevity, and in clarity. It is one of the great achievements in the entirety of human history. Unfortunately, since it is written in words, it is subject to the meanings assigned to those words. Word meanings can change over time, and this oftentimes leads to conflicting (and often tendentious) interpretations of what its 4543 original words and 3048 amendment words mean and instruct. Those interested in gun control, for example, presume a modern interpretation of the phrase “well-regulated.” Instead of “proficient” (the original meaning/intent), many assert a more modern meaning i.e. “subject to government control and restriction.” This serves their ends, obviously, but it directly contradicts both an originalist/historic interpretation and the structure of the balance of the Bill of Rights i.e. unqualified protection of individual rights, and specific mandates when the Government seeks to adjudicate crimes and civil wrongs.

Other examples abound, but one in particular has become ever more common: the misinterpretation of the General Welfare Clause.

Article I, Section 8 of the Constitution starts with:

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;

and then lists the specific powers granted to the Congress to fulfill this mission.

“Welfare” such as we have today didn’t exist in colonial times. England had a “poor law” in operation since the 16th Century, which was administered at the local, parish level. By the early 18th century, the poor were assisted/managed with communal housing and work houses, but private-sector charity was also a significant source of aid. While the “poor law” might bear superficial similarity to modern welfare, the word itself wasn’t used thus.

“[T]o provide for… the general Welfare” is nevertheless often cited today by big-government advocates whenever the question of whether the Constitution authorizes Congress or the President to do something that’s not listed as an Enumerated power, and in particular to justify taking money from some merely to give to others.

In short, the General Welfare clause is seen as a “carte blanche” that allows the federal government to do whatever it wants with the money it collects, via taxes, duties, imposts, excises, fees, licenses, and so on.

Why, if this was the intent of the phrase “provide for the general Welfare,” would Madison et al bother with enumerating powers? We needn’t speculate; his own words tell us he did not have this intent:

With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creator.

In other words, the Constitution is a document establishing a limited government, and an expansive carte-blanche interpretation runs directly contrary to that core principle.

If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.

Different words, same conclusion.

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.

Taken to a logical end, a carte-blanche interpretation wipes away the entire notion of federalism, of individual liberty, and of enumerated powers.

But, wait, there’s more. Even then, some argued for an expansive interpretation of “general welfare,” as our modern-day statists presume. Federalist #41 spoke to that:

It has been urged and echoed, that the 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,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

This echoes the “why would they bother enumerating powers” argument I made a couple paragraphs back, and it warns, just as the third Madison quote did, of the extreme peril of the carte-blanche interpretation.

Some have cited Alexander Hamilton as a Founder who had a different interpretation of the General Welfare clause, as justification for choosing the carte-blanche meaning today. And, indeed, Hamilton did have a more expansive view of the power it granted. But, not only was he alone amongst the Founders in believing thus, even he put limits on that power:

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this–That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

Thus, monies spent by the Government needed to be to the benefit of all citizens, not some at the expense of others, and nationwide instead of local.

No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.

So, even under Hamilton’s expansive view, the monies collected should only be spent on enumerated powers.

Under a logical assessment (why enumerate?), the carte-blanche interpretation of the General Welfare clause fails.

Under textualism, the carte-blanche interpretation of the General Welfare clause fails.

Under original intent, the carte-blanche interpretation of the General Welfare clause fails.

Even under the most expansive Founder’s understanding, the carte-blanche interpretation of the General Welfare clause fails.

In short, there is nothing to support the idea that the General Welfare clause allows the government to do whatever it wants, and in particular to dispense “welfare” as we currently understand it. Unfortunately ours is a government of people, and people are apt to do whatever they want until someone tells them not to. When the people who tell them not to are themselves of the misguided, “big government” mind set, much that’s not supposed to happen does happen.

A common deflection of this historical record appears in the form of a “moral” argument for carte-blanche government, as if it’s charitable to give away other people’s money, and to appropriate that money by force for such purposes. This argument falls apart even more quickly than the carte-blanche argument: Is it moral or charitable to point a gun at someone in order to give the fruit of his labor to someone else? That is the essence of government’s redistribution of wealth, and when it’s (correctly) phrased in such terms, is nothing more than thuggery.

Sadly, the warnings and fears Madison detailed in the third quote above have largely been realized. We don’t have a state religion, but the government decides which ones “count” via the tax exemptions it proffers. We don’t yet have the feds hiring teachers, but curricula are dictated via federal largesse. The Feds do assume the provision of the poor, in direct contradiction to his intent. The Feds do regulate roads to a massive degree, even intra-state roads, via the dispensation of funds. What the Federal Government does today, with the blessing of tens of millions of citizens, would drain all the color from Madison’s face.