According to the Constitution, the federal government has a very limited set of powers. Essentially, if the Constitution doesn’t explicitly give the government the power to do something, it doesn’t have it. However, proponents of big government typically cite the General Welfare Clause of the Preamble as evidence that the Constitution does in fact grant a fairly wide range of general power to the government. The most obvious recent example was when House Majority Leader Steny Hoyer (D-Md.), in his defense of health insurance mandates, also claimed that Congress has “broad authority” to force Americans to purchase other things as well, so long as it was trying to promote “the general welfare.”
Is Hoyer correct here? Well, let’s look at the Preamble and see if we can decipher what the language really says:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
We can begin by studying the sentence structure for any clue as to the meaning of the General Welfare Clause. The Welfare Clause is one of several clauses in this one sentence Preamble. Now, clauses are not essential to a functionally complete sentence, so let’s remove them for a minute to get to the root of what the Preamble is saying:
We the People of the United States do ordain and establish this Constitution for the United States of America.
The core of the Preamble states exactly what the Founders are doing: creating the Constitution. Now, since the clauses are prefaced with the phrase “in order to”, it means they are explaining why they are establishing the Constitution. Note that they aren’t explaining how. They are explaining why. Therefore, we need too look elsewhere for the “how” – somewhere other than the General Welfare clause. Of course, the “how” is the listing of enumerated powers in Article 1, Section 8 of the Constitution, and note that these powers are limited.
We should be able to put faith in our Founders that they would not use incorrect sentence structure when writing the law of the land, but nevertheless, it would be worthwhile to explore concrete evidence of the intent of the founders themselves. For that, we can look at the Federalist Papers, and in particular, James Madison’s Federalist Paper #41.
Let’s look at the paragraphs addressing the General Welfare Clause:
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. 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 the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
In this paragraph Madison recognizes that some have claimed that the language of the Constitution gives the Federal government unlimited powers, but sees this as an attack on the Constitution. Madison even goes so far as to say this is such a far-fetched interpretation that those who make it must have been under distress when doing it. We know where Madison stands; now lets read on to see why…
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”
Here, Madison lays the groundwork for his argument. He admits that if the powers of the Federal government weren’t addressed anywhere but in the Preamble, then perhaps one could conclude that it does grant the Federal government broad powers. However, Madison even sees this as problematic, since the government would simply have far too many issues to address if it had such wide ranging authority. Worse yet, such power would enable it to trample the basic freedoms the Constitution was created to protect. Madison, then, has given practical reasons why his understanding of the General Welfare Clause is correct. If we read on further, though, he leaves no doubt as to the proper meaning of the clause as he explains how the grammatical structure of the writing itself supports his argument:
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 longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? 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? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
Madison points out that the preamble, with its General Welfare Clause, is immediately followed by specifics of the Constitution itself. He explains that it is proper grammar to follow a general statement with specifics only if the specifics provide further clarification. If the specifics did not provide such clarification, they would merely serve to confuse the writing, which is obviously not the intent of the authors. In fact, Madison calls such an idea an absurdity. In the case of the Constitution, the General Welfare Clause simply cannot stand on its own as a grant of inclusive power because that would negate the need for any further specificity. Madison concludes that there must be an attempt to mislead somewhere: either in the words of the Constitution itself or by those who claim the General Welfare Clause grants wide powers to Congress. I invite you to take your pick.