followed this column for more than a few months knows how I feel about our
government’s disregard of the Constitution so there’s no need to rehash
that. The question I’m asked
regularly however revolves around the basis on which Congress justifies the
expansion of all this power—spending and otherwise.
My response is always short and to the point—they just arrogantly
ignore the Constitution with impunity.
When confronted by the indisputable facts, what excuse do those in
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;”
Now we’ve argued
about the definition of this for over 200 years in the courts, in the congress
and on the streets and you can reference almost any opinion you like because
most will seek out the interpretation that justifies their action.
Given the difference of opinion over the years, whose opinion really
counts? Whose view is definitive?
Speaking as a simple solider, I’d say it would be the folks that wrote
the original document even more so than the subsequent courts that bastardized
it. What did the Founders really
mean? After all, they’re the ones
that can actually answer questions first hand concerning original meaning/intent
and not be speculative or twisted politically by the passage of time wouldn’t
you think? OK, let’s see what
they had to say and put this question to rest.
Let’s ask James Madison, the Father of the Constitution, Thomas
Jefferson and Alexander Hamilton. Could
they possibly shed any light on this?
"With respect to
the two 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 creators." –
James Madison in letter to James Robertson
jurisdiction of power] is limited to certain enumerated objects, which concern
all the members of the republic, but which are not to be attained by the
separate provisions of any." - James Madison, Federalist 14
delegated by the proposed Constitution to the federal government are few and
defined . . . to be exercised principally on external objects, as war, peace,
negotiation, and foreign commerce." - James Madison, Federalist 45
"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." - James Madison, 1792
allows only the means which are ‘necessary,’ not those which are merely
‘convenient,’ for effecting the enumerated
powers. If such a latitude of construction be allowed
to this phrase as to give any non-enumerated power, it will go to every one, for
there is not one which ingenuity may not torture into a convenience in some
instance or other, to some one of so long a list of enumerated powers. It would
swallow up all the delegated powers, and reduce the whole to one power, as
before observed" - Thomas Jefferson, 1791
not unlimited powers to provide for the general welfare, but only those
specifically enumerated." - Thomas Jefferson, 1798
There you have it.
James Madison, the Constitution’s author and Thomas Jefferson the author of
the Declaration of Independence, specifically say that Congressional powers are
to be limited and defined – unlike most modern interpretations!
and Madison were not our only Founders. These two were strict constitutionalists
who feared the potential strength of any government. So let’s look at another
Founder’s opinion—Alexander Hamilton who historically saw it in a somewhat
specification of particulars [the 18 enumerated powers of Article I, Section 8]
evidently excludes all pretension to a general legislative authority, because an
affirmative grant of special powers would be absurd as well as useless if a
general authority was intended." - Alexander Hamilton, Federalist 83
act … contrary to the Constitution can be valid. To deny this would be to
affirm that the deputy is greater than his principal; that the servant is above
his master; that the representatives of the people are superior to the people
themselves; that men acting by virtue of powers may do not only what their
powers do not authorize, but what they forbid." - Alexander Hamilton,
In short, Hamilton
tells us that since the powers of Congress are enumerated and limit Congress to
those powers, any assumed authority outside those specified that don’t have a
direct relation to those explicit powers must be contrary to the Constitution
From the proverbial
horses mouths to your own eyes—the all-encompassing General Welfare Clause is
not as all encompassing as our current “leaders” would have us believe.
In no way does that one phrase grant unlimited power to the Federal
government rather it pertains only to those enumerated powers that can and ought
to be applied universally and in general to the several states.
Now compare what you just read above from the Founders themselves to a Supreme Court ruling in 1976 in Buckley vs Valeo.
General Welfare clause is) a grant of power, the scope of which is quite
expansive, particularly in view of the enlargement of power by the Necessary and
Proper Clause ....It is for Congress to declare which expenditures will
promote the general welfare... Whether the chosen means appear
"bad" or "unwise" or "unworkable" is to us
irrelevant; Congress has concluded that the means are "necessary and
proper" to promote the general welfare, and we thus decline to find this
legislation without the grant of power in Art. I Sec. 8.”
Buckley v. Valeo
Important note: What was omitted from the necessary and proper clause referenced in the ruling above was the rest of that original clause of Section I Article 8 which states, “To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers [foregoing = those specifically enumerated] and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” “Vested by this Constitution…” is key—again, authority that is necessary and proper for the general welfare which pertains only to the powers enumerated by the Constitution.
As a very learned judge, who is a good friend of mine, interpreted this 1976 Supreme Court view some 200 years removed from the Founders, “`it [the general welfare clause] means just what I choose it to mean.”
today it does mean “just what I choose it to mean”, then the Court and
Congress have set themselves above the Constitution and it no longer serves as
America’s anchor of freedom, justice and law but has degenerated into that
“living, breathing document” whose meaning can change routinely, blown along
by prevailing political winds. This was NOT the original intent, not if we truly
believe the Constitution is the supreme law of the land and that no man is above
the law. As that favorite judge of mine put it, “Interpreting the Constitution
as a "living, breathing document" subject to reinvention according to
the political whims of the moment is not just bad policy.
It is a suicide pact.”
So you see what 200 years of bastardization, twisting and manipulation in the name of political power grabbing can do to the Founder’s inspired work! It’s both sickening and infuriating.
authoritative view from our Founder’s saddles along side the distorted one of
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