Saturday, February 07, 2009



Recently I was involved in a discussion regarding the constitutionality of national health care. Someone pointed out that it was constitutional on that same basis as Social Security, based on the supreme court’s decision Helvering v. Davis (1937) The justification was based on the General Welfare clause in Article 1 Section 8 of the US Constitution:

‘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 State’

This is followed by a listing of the ‘enumerated’ powers of the federal government. The court decided that the federal government could collect taxes and use them for providing social security , as it was interpreted that the phrase ‘general welfare’ was open ended and implied that congress could do anything that promoted the public good. Further, it admitted that ‘general welfare’ was an ambiguous term, and it was not the place of the courts to decide its meaning, but that it should be left to the discretion of the congress. This is perhaps the most damaging aspect of the decision. Not only did it decide congress could do most anything it wants as long as it promoted the ‘common welfare’ but it was up to congress to police itself with regards to constitutionality. This decision turned the concept of separation of powers and federalism on its head. Further, it was in direct contradiction to what the founders implied when they drafted the constitution.

According to James Madison, the term ‘general welfare’ was meant to generalize about the specifically enumerated powers in A1 Section 8 of the Constitution.

‘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. If the words obtained so readily a place in the "Articles of Confederation," and received so little notice in their admission into the present Constitution, and retained for so long a time a silent place in both, the fairest explanation is, that the words, in the alternative of meaning nothing or meaning everything, had the former meaning taken for granted.’ - letter to James Robertson from James Madison

Above he states that the term ‘general welfare’ is defined by the other powers in A1 S8 and means nothing more. He was also perplexed that those opposed to the constitution had the fear that the term ‘general welfare’ would give congress unlimited power, when similar wording appeared in the weaker Articles of Confederation, which they supported.

More is said of this in Federalist # 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 to be necessary for common defence or general welfare.

‘But what would have been thought of that assembly, if , attaching themselves to those general expressions , and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare?’

It appears that in Helvering v. Davis brought to bear the worst fears that the anti-federalists had anticipated, and is clearly counter to the intention of our founders. Madison in fact believed that this fear was unfounded and that the anti- federalists were being silly, grasping for straws, looking for some far fetched reason to oppose the adoption of the constitution, because he was certain that it was self evident that ‘general welfare’ was defined by the enumerated powers and nothing else. He stated that the belief of anything else was a ‘misconstruction.’

‘No stronger proof could be given of the distress under which these writers ( meaning the antifederalists) labor for objections, than their stooping to such a misconstruction.’

To clear up this confusion, and straighten out the ‘misconstruction’ that they presented, Madison adds the following, also from federalist #41:

‘Nothing is more natural nor common than first to use a general phrase ( like common welfare) and then to explain it and qualify it by a recital of particulars.’

i.e. the phrase ‘general welfare’ is defined and explained by the enumerated powers of government that follow in Article 1 Section 8 of the constitution.
Thomas Jefferson also was an advocate of this position as he states in a letter to Albert Gallatin in 1817:

‘Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.’

Finally from Federalist # 45 Madison states:

‘The powers delegated by the proposed constitution to the federal government are few and defined.’

By that logic, if ‘general welfare’ takes on the meaning implied by Helvering v Davis, then the federal governments delegated powers would not be few, and if ‘common welfare’ is not determined by the specifically enumerated powers in the constitution, then it is not defined. In Helvering, the courts make a terrible error in ruling that the powers of the federal government can be defined any way congress desires based on the ‘general welfare clause.’


Tom said...

Very helpful article! Thanks!

David Nunez said...

Helpful but some of Madisons writings could use some interpretation in todays language.