Providing for the General Welfare
Myth No. 3: The Constitution authorizes Congress to pass any law that “promotes the general welfare”.
Legislation passed by Congress concerning education, health care, the environment, energy conservation, etc., are justified, all or in part, by the use of the phrase “provide for the general welfare” found in the Preamble to the Constitution and in Article I, Section 8. It is important to note however, that the use of this phrase in the Constitution and in the writings of the Founding Fathers is to define the purpose of a power, never as a separate power itself. It was used in the Preamble to define one of the purposes of the Constitution. In the introductory clause of Article I, Section 8, it is used to define one of the three broad purposes for which Congress is empowered to levy taxes.
The meaning of the phrase was not debated during the Philadelphia Convention. In fact, it was used only three times in the context of a debate. In each instance, it was used to define the purpose for which a particular power was proposed, never as a distinct power itself. However, after the Convention and during the ratification debates it became a serious cause of contention.
The anti-federalists, who seem to have had a more realistic view of human nature than the federalists, rightly foresaw that it would be used as a loophole to pass legislation for purposes not delegated to the federal government by the Constitution. James Madison attempted to lay this controversy to rest with Federalist Number 41.
“…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 necessary for the common defense or general welfare…”
Madison goes on, in the same document, to ridicule those who raised this objection.
“…No stronger proof could be given of the distress under which these writers labor for objection, than their stooping to such misconstruction…” “…But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a stronger pause than a semicolon?”…. “For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?”
This did not lay the controversy to rest, however. It came up again a few years later in the dispute between Alexander Hamilton and Thomas Jefferson concerning the constitutionality of establishing a national bank. Jefferson in an opinion requested by President George Washington on the bill to establish a bank, writes,
“…The incorporation of a bank, and other powers assumed by this bill have not, in my opinion, been delegated to the U.S. by the Constitution…nor are they within any of the general phrases…”“…To lay taxes to provide for the general welfare of the U.S.” that is to say ‘to lay taxes for the purpose of providing for the general welfare‘.” “For the 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.”
“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 would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the U.S. and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they pleased…” (Emphasis in original)
Treating the phrase “to provide for the general welfare” as a separate power delegated to Congress rather than describing the purpose of powers that are delegated does not pass the logic test. As explained elsewhere, the purpose of a Constitution in a republican form of government is to limit its powers. It is therefore illogical to suppose the Framers would insert a separate unlimited power to pass any law it deemed to be for the general welfare. As both Jefferson and Madison pointed out above, such a provision would render the entire Constitution irrelevant and unnecessary.
Legislators and others who use this phrase to justify passage of unconstitutional laws for purposes not included in the enumerated powers delegated to Congress, are using it either to hide their own ignorance of the Constitution or in a deliberate attempt to mislead the public.