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Thursday, September 3, 2009

Mangled "General Welfare" Interpretation Imperils Constitutional Governance

For a long time now, the Constitution which our leaders and representatives have sworn to uphold and defend has been routinely violated. As the years go by, the pace and breadth of violations has accelerated and expanded.

Understanding that Congressional overreach has resulted in our country’s being saddled with nearly $100 Trillion in Medicare and Social Security unfunded liabilities alone, there is little doubt that unrestrained federal encroachment and its signature “bread and circuses” profligacy is fast leading this country to insolvency and political dissolution.

Article 1, Section 8 of the Constitution enumerates 18 specific powers granted to Congress. (Note: the original document enumerated 17 powers.) National healthcare, cap and trade, card check, bailouts, pork barrel expenditures and a litany of other legislative initiatives are most certainly not among those legislative powers.

All other powers not specifically granted to Congress in Article 1, Section 8 or in subsequent amendments are, according to the 10th Amendment, reserved solely to the States and to the People.

Clearly, these fundamental elements of the Constitution have been patently ignored or so liberally reinterpreted as to obliterate the original meaning and intent of the framers. It’s become painfully obvious that the Progressive stream of legislative abuses which has resulted from the dramatically expansive interpretation of Article 1, Section 8 is leading us to an ideological transformation which is inimical to our founding principles and way of life.

To get us all back onto solid Constitutional footing, the Enumerated Powers Act (HR 450) was introduced by Rep. Shadegg of Arizona and is currently co-sponsored by 48 House members. (The counterpart Senate Bill 1319 has 21 co-sponsors.) Very simply, if passed, HR 450/S 1319 would require Congress to cite the Constitutional authority for each law it passes. No constitutional authority, the bill can’t pass. With constitutional authority, the bill can pass. To me, this is a perfectly sensible and responsible way to keep Congress truer to their pledge to uphold and defend the Constitution and, yes, to prevent further and avoidable erosion of our Constitution. Frankly, it is inconceivable to me why any conscientious Congressperson would object to its passage.

But, on what basis has so much federal overreaching been justified? Further, with passage of HR 450, would we, in fact, once again find ourselves on solid constitutional footing? With these questions in mind, let’s ever so very briefly trace the evolution of the meaning and application of the “general welfare and taxation clause”.

As alluded to above, the Tenth Amendment provides that “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.” Thus, one would think there should be, therefore, a reasonably clear and inviolable delineation between federal and State powers. But, apparently, not so, as we shall see. In fact, state powers are being rapidly eclipsed by the feds.

The Article 1, Section 8 preamble/clause 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.” This is followed by 17 original enumerated powers.

James Madison, the “father of our Constitution”, warned that “if Congress can do whatever in their discretion can be done by money [to] promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” Accordingly, Madison believed that “promoting the…general welfare” authorized Congress to spend money, but ONLY to carry out the 17 powers and duties specifically and originally enumerated in Article 1, Section 8. (Note again that in the original text, the "welfare clause" was considered by Madison as but a qualifier, a preamble to, but not a discrete power unto itself.)

Madison went on to explain that “Congress has not unlimited powers to provide for the general welfare, but to those specifically enumerated; and that, as it was never meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.” In effect, Madison posited that “I have always regarded [the words] general welfare as qualified by the detail of powers (enumerated in Article 1, Section 8) connected to them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution not contemplated by its creators.”
Thomas Jefferson explained it this way: "The laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. Congress is 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. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless.”
Under the Articles of Confederation during and immediately following the Revolution, the central government could raise naval forces and requisition ground forces, but it could not impose taxes or duties to implement those activities unless nine colonies assented. Herein lay the Articles’ greatest weakness and the Constitutional Convention was determined not to make that same mistake again. Thus, the enumerated powers of Article 1, Section 8 and the means to execute those powers was included in the Constitution.

While Madison’s and Jefferson’s meaning of general welfare held sway in the early years of the Republic, in McCulloch vs Maryland (1819) Chief Justice Marshall championed the broader Hamiltonian view that the happiness and prosperity of the nation requires not only that the general government has ample powers to effectively ensure the general welfare, but that it has ample means for executing those enumerated powers.

Fast-forward to 1936 when the Supreme Court in an FDR-driven opinion (US vs Butler) held that the “general welfare clause granted Congress power it might not derive anywhere else [in the Constitution], but limited the power to spending for matters affecting only the national welfare.” It further held that the “general welfare clause confers a power separate and distinct from those 17 powers later enumerated and is not restricted in meaning by the grant of them…” Thus, by legal fiat the number of enumerated powers increased from 17 to 18.

Later, in Helvering vs Davis (1937), the court rendered a more expansive interpretation by conferring upon Congress power to impose taxes and to spend money for the general welfare subject almost exclusively to its own discretion.

Since then, the more expansive Hamiltonian interpretation which incorporates the preamble into the enumeration of powers has shaped legislative and Supreme Court thinking. (However, here it is worth noting that even to Hamilton pork barrel projects for specific localities exceeded congressional authority. To wit, “the object to which an appropriation of money is to be made [must] be general and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.”) So, if nothing else, HR 450 would at least halt the self-serving and costly epidemic of pork barrel spending.

Serving to further muddy the waters, the changing meaning of the word “welfare” itself underscores the conundrum. For instance, in 1828, Webster’s dictionary links welfare to protection (from unusual evil or calamity) and security (peace and prosperity). In stark contrast to this earlier definition, however, the current definition is as follows: “aid in the form of money or necessities for those in need; an agency or program through which such aid is distributed.” Mindful of the striking contrast and the impact of that contrast to governance, Noah Webster himself posited that “in the lapse of two or three centuries, changes have taken place which…obscure the sense of the original language; whenever words are understood in a sense different from that which they had when introduced…mistakes may be very injurious.” No kidding.

Theodore Sky, Catholic University School of Law, notes that the expansive interpretation of the enumerated powers has led to an essentially “unbounded modern welfare state.” And that’s clearly where we now find ourselves as a nation.

So, even with passage of HR 450/S 1319, continued congressional reliance upon an already expansive interpretation of the general welfare clause will surely render further legislative abuse unavoidable. Ultimately, therefore, the only solution might well be a Constitutional amendment which would return Article 1, Section 8 to its original and more restrictive meaning and intent. But, can we hold our collective breath until that happens? Probably not.

Nonetheless, HR 450/S 1319 is a step in the right direction, and, at the very least, the unconstitutional expenditure of billions of dollars for “pork” could finally be thwarted. That alone should make passage of the Enumerated Powers Act a top priority in D.C.

For this reason, we should urge our representatives to fast-track passage of HR 450/S 1319. As said, it's a pivotal step in the right direction.

Both HR450 and S1319 died in committee

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