November 23, 1999
column is for serious conservatives only. No cheap off-color
Clinton jokes today. Were going deep. You may want to put on your
thinking cap for this one.
As you presumably know, Article I,
Section 8 of the Constitution gives Congress the power to impose taxes to
provide for the common Defence and general Welfare of the United
States. But since the New Deal, this clause has been pretty much
boiled down to one phrase: general welfare. It is now
generally assumed that Congress may pass any law it deems in the
general welfare of the United States.
Strict constructionists have always
objected that this broad and vague interpretation endows the federal
government with an unlimited range of power, making redundant nonsense
of the rest of Section 8, which lists the particular powers of Congress. In
Federalist No. 41, James Madison asked rhetorically: 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
Madison was replying to
anti-Federalist writers who had warned that the general welfare
clause opened the way to unlimited abuse. He haughtily accused those
writers of labour[ing] for objections by stooping to
such a misconstruction of the obvious sense of the passage, as
defined and limited by those powers explicitly listed immediately after it.
Like so many things the Federalists
said could never, ever happen, it happened. The general
welfare clause is constantly abused in just the way the pessimists
predicted. The federal government exceeds its enumerated powers
whenever it can assert that other powers would be in the general
The Federalist Papers
are one of our soundest guides to what the Constitution actually means.
And in No. 84, Alexander Hamilton indirectly
confirmed Madisons point.
Hamilton argued that a bill of rights,
which many were clamoring for, would be not only
unnecessary, but dangerous. Since the federal
government was given only a few specific powers, there was no need to
add prohibitions: it was implicitly prohibited by the listed powers. If a
proposed law a relief act, for instance wasnt
covered by any of these powers, it was ipso facto unconstitutional.
Adding a bill of rights, said
Hamilton, would only confuse matters. It would imply, in many
peoples minds, that the federal government was entitled to do
anything it wasnt positively forbidden to do, whereas the principle
of the Constitution was that the federal government is forbidden to do
anything it isnt positively authorized to do.
Hamilton too posed some rhetorical
questions: For why declare that things shall not be done which
there is no power to do? Why, for instance, should it be said, that the
liberty of the press shall not be restrained when no power is given by
which restrictions may be imposed? Such a provision would
furnish, to men disposed to usurp, a plausible pretence for claiming that
power that is, a power to regulate the press, short of
actually shutting it down.
We now suffer from the sort of
confusion Hamilton foresaw. But what interests me about his argument,
for todays purpose, is that he implicitly agreed with Madison about
the narrow meaning of general welfare.
After all, if the phrase covered every
power the federal government might choose to claim under it, the
general welfare might be invoked to justify government
control of the press for the sake of national security in time of war. For
that matter, press control might be justified under common
defense. Come to think of it, the broad reading of general
welfare would logically include common defense,
and to speak of the common defense and general welfare of the
United States would be superfluous, since defense is presumably
essential to the general welfare.
So Madison, Hamilton, and
more important the people they were trying to persuade agreed:
the Constitution conferred only a few specific powers on the federal
government, all others being denied to it (as the Tenth Amendment would
Unfortunately, only a tiny fraction of
the U.S. population today subtle logicians like you can
grasp such nuances. Too bad. The Constitution wasnt meant to be a
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