Sunday, July 1, 2012

Limiting the General Welfare Clause

Andrew McCarthy
The Hamiltonian view of the provision has expanded government.

Three months ago — while anticipating that there would be five judges on the Supreme Court who would figure out a way to uphold Obamacare despite the weakness of the Commerce Clause argument for the “individual mandate” — I argued on the Corner that the root of our problem is the General Welfare Clause in the preamble of the Constitution’s Article I, Section 8. That is, since the poorly reasoned decision of the New Deal–era Supreme Court in United States v. Butler (with the justices laboring under FDR’s court-packing threat), the Supreme Court has ceased to recognize any limits to Congress’s power to tax and spend on what it unilaterally decides is in the public interest.

It does not have to be this way. Indeed, it was not this way for the first century-plus of the nation’s existence.

As my friend John Eastman of Chapman Law School outlined in a brilliant essay for the Heritage Foundation, there are three visions of what “general welfare” means in the Constitution. First is the Hamiltonian view, with which we are now saddled.

Alexander Hamilton contended that Congress’s taxing authority is “plenary, and indefinite,” and that “the objects to which it may be appropriated [i.e., the general welfare] are no less comprehensive.” He successfully persuaded George Washington to adopt this construction during the first presidential administration. Yet it was widely rejected. In fact, the Framers of the Constitution denied a Hamiltonian proposal to include a provision authorizing the federal government to spend public funds on internal improvements. Most presidential administrations, moreover, recognized that Hamilton’s construction of the general welfare could, as James K. Polk’s crystal ball warned, “absorb the revenues of the country, and plunge the government into a hopeless indebtedness.”

Second is the position that is generally credited to James Madison but was shared by Thomas Jefferson — the one I believe is correct. It holds that the preamble’s General Welfare Clause, right before the Constitution’s exacting enumeration of Congress’s powers, merely makes clear that Congress has the authority to raise revenue and spend in furtherance of those specified powers. Those powers include many things: declaring war, raising armed forces, regulating interstate and international commerce, establishing post offices and the lower federal courts, etc. But they do not include welfare-state programs.

Don’t be cowed by shrieking from the Left. The Constitution, of course, does not say we cannot have Social Security, health care, education, and other such programs that Congress is given no power to create. It creates a federalist system of dual sovereignty. Welfare programs can legitimately be created only by state and local governments. It is at that level that the people most intimately familiar with the local culture and conditions can best determine what they desire and what they are willing to pay in order to have it — without those desires and costs’ being imposed on other states that have different notions of what government may demand of the citizen.

If anything should be patent by now, as we rapidly sink trillions deeper into debt’s death spiral, it is this: If Congress’s tax-and-spend authority is not restricted to the specific grants of power enumerated in Article 1, Section 8 — a restriction confirmed by the Tenth Amendment’s guarantee that powers not granted by the Constitution to the national government are retained by the states and the people — the Hamiltonian gloss on general welfare both bankrupts the country and destroys state sovereignty.

As is seemingly always the case, there is also a “third way” — a “moderate” compromise between the Hamiltonian and Madisonian “extremes.” This is the Monroe position. President James Monroe understood the existential danger of Hamilton’s no-limits approach. Still, as John Eastman explains, he was unwilling to adopt Madison’s strict limitations. His middle position was that the concept of “general welfare” did not restrict Congress to section 8’s enumerated powers, but it did contain its own restriction — the word general.

Spending, he inferred, had to be for the general welfare: It could not be a redistribution of wealth strictly for the benefit of local or regional interests; it had to accomplish some legitimate national interest. To be more concrete, Eastman recounts that one early Congress declined to fund the dredging of the Savannah River but approved an appropriation for a lighthouse at the entrance of the Chesapeake Bay: The latter was valid because it benefited coastal trade for the nation, the former invalid because it would solely benefit Georgia and South Carolina.

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