Editor’s note: This constitutional classic originally appeared in the August 1, 1983 edition of The Freeman.
“I wish the Constitution was not so vague,” one of my daughters said. My first reaction to that was to deny that the document is particularly vague or, for that matter, obscure.
“Why,” she persisted, “does it contain a clause on the general welfare?” Actually, her question was a good one, and it gave point to her observation on the vagueness of the Constitution, if, as I think, I know where she was coming from, as they say. She is a college sophomore and is taking courses in American history and government, among others. Undoubtedly, she had hoped to find that the Constitution would be a bulwark against the claims of the welfare state. Yet, after studying it in her classes, she has been struck by its ambiguity and what appears to be the slipperiness of its phrases. It is my hope that what follows may throw some light on the troublesome phrase, both for sophomores and the rest of us as well.
The phrase “general welfare” occurs twice in the Constitution. It occurs first in the Preamble, which announces that one of the purposes of the Constitution is to “promote the general Welfare.” Since this is a statement of purpose, not a grant of power, it need not detain us beyond noting that it is there. The other use of the phrase, however, is much more significant. It is contained in the first sentence of Article I, Section 8, which lists the powers of Congress. Equally important, it is used in connection with the grant of the power of taxation, which, then as now, was reckoned to be an essential power of government. The relevant clause reads, “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 States . . . .” Clearly, Congress is empowered to levy taxes to provide for the general welfare. Viewed from the present perspective, this gives color, at least, to the idea that the welfare state has some constitutional foundation.
But that is to look at the matter wrong-end-to. What counts, in the first place, is what the words meant when they were used. “Welfare” is commonly used today to refer to or denote government programs to provide for the poor, the disabled, those without work, and those reckoned to be without sufficient means to provide for their basic wants. It is so used in such phrases as, welfare state, welfare programs, welfare worker, and welfare recipient. Until quite recently it was used in that way in the name of a cabinet rank department, namely, the Department of Health, Education and Welfare. This usage, however, was unknown to the makers of the Constitution. If they had intended to authorize what are nowadays called welfare programs, they would not have used the word, “welfare,” to express that intent. It is the other way around: welfare programs bear that name to give the color of constitutionality to them. But let that wait for a bit.
What Americans began calling welfare programs in the late 1930s, or thereabouts, the Founders would have known by the name of “poor relief,” so far as they were familiar with it at all. In England, tax supported relief of the poor was required under the poor laws, more specifically, the Elizabethan Poor Law, during the American colonial period. Poor laws were passed in the wake of the Reformation, the suppression of monasteries, and the confiscation of church lands. The destitute had received aid before that time from organizations within the church, but when much of the wealth of the church was taken away, the state took over last resort poor relief. Actually, Parliament simply required that local communities tax for and provide such relief.
A similar system took shape in the American colonies. In New England, relief for the poor was a charge upon the villages and towns, paid for from locally levied tax monies. Where the Anglican Church was established, poor relief was a duty of the parishes, and parishioners were taxed to pay for it.
Poor relief was hardly a sumptuous affair in the colonies, or, for that matter, in 19th-century America. Unless the person were totally incapacitated, more attention was given to reforming the poor, i.e., getting them to become productive and self-supporting, than helping them to fare well. For example, “The vestries in Virginia disposed of the able-bodied poor, destitute orphans, and the illegitimate children of indentured servants by binding them to masters as apprentices or servants.” Workhouses were set up in some places for those who had no visible means of support. In New England, “The town provided materials and tools with which the inmates were required to earn a living.” The incapacitated were sometimes provided almshouses, or otherwise given some minimal aid.
No one at the time of the writing of the Constitution would have associated the life of the poor dependent upon public relief with the word welfare. “Welfare,” in common usage for centuries, stems from the roots “well” and “fare”, and means basically, according to my dictionary, a “state of faring well; well-being.” Synonyms are: “prosperity, success, happiness, weal.” No sensible person would have confused poor relief with prosperity, success, or even faring well. Indeed, it was in every respect the opposite.
So far as my researches have revealed, the word “welfare” began to take on a new connotation around the beginning of the 20th century. The phrase, “welfare-manager,” appeared in print in England in 1904. Some factories, it seems, were employing people to assist workers in improving their well-being. Thus, the London Daily Express declared in 1916 that “Welfare work tends to improve the condition of life for women and girls employed in factories.” However, the word still had no clear connection with relief for the poor.
That connection was made in the United States in the course of the routinization, regularization, and bureaucratization of government aid programs in the 1930s. The key piece of legislation for making this change was the Social Security Act, passed in 1935. There is reason to believe that the adoption of the word “welfare” in place of relief was a more or less deliberate action. It served a highly important political and constitutional purpose. Much of the early New Deal legislation was tied up in court tests by 1934. As it turned out, the central pieces of New Deal legislation were nullified in the next year or so. New Dealers were casting about frantically for ways to overcome the constitutional impasse.
Secretary of Labor Frances Perkins remarked to Supreme Court Justice Harlan Stone, in 1934, that she was worried that the social security system they were devising might not pass the constitutionality test. “The taxing power of the Federal Government, my dear,” Stone replied; “the taxing power is sufficient for everything you want and need.” This pointed clearly toward the genera] welfare phrase in the clause of the Constitution authorizing taxation. In the same year Professor E. S. Corwin, a recognized constitutional authority, maintained that the taxing and spending authority of Congress was unchecked by the Constitution. Another law professor declared, after the Supreme Court nullified crucial portions of the NRA: “The waters dammed by judicial restriction on the commerce power may break out in unwelcome fields of taxing and spending. What seems a great victory against national regulation may prove to be a Pyrrhic one.”
Indeed, it did. The Social Security Act leaned heavily upon the general welfare phrase in the Constitution. It opens with the claim that it is “An Act to provide for the general welfare by establishing a system of Federal old-age benefits, and by enabling the several States to make more adequate provision for aged persons, blind persons, dependent and crippled children, maternal and child welfare, public health, and the administration of their unemployment compensation laws . . . .”
Social Security Involves a Bundle of Programs
Since many people may not think of Social Security as a welfare measure, it may be well to emphasize that, however old age benefits—the phrase then used to describe Social Security payments to the retired—should be classified, there was a bundle of programs provided in the act which formed the core of the welfare programs. The bundle included such things as pensions to those who had not contributed to Social Security and aid to dependent children, among others.
Moreover, these programs were administered in the states by what generally became known as welfare departments in the 1940s and 1950s. Frequently, they were formally titled, Department of Public Welfare (DPW), and those who administered the programs were referred to as welfare workers. In 1953, an assortment of these programs were moved into the new cabinet ranked Department of Health, Education and Welfare. In this fashion, the shift from referring to these programs as poor relief to public welfare was completed, and the claim that such government activities were sanctioned by the reference in the Constitution to general welfare was linguistically ratified after the fact.
The main point, of course, is that the Founders could not have intended to include what they knew as poor relief in their reference to the general welfare. Poor relief was the last resort of local governments to provide minimal means for survival; it was at the opposite end of the scale from faring well. Beyond that, the evidence presented here points toward the conclusion that as late as the early 1930s it took a great deal of straining to make the beginnings of an identification between relief and welfare.
But there is much more involved in this claim that the federal government is constitutionally authorized to provide for the general welfare than such programs as have been identified, however spuriously, with welfare. The whole concatenation of redistributionist and interventionist programs which comprise the welfare state find their main justification under it. Thus, we are brought back to the consideration of the claim regardless of what meanings may be attached to the word welfare.
The crucial question then becomes whether or not there is a grant of power in the Constitution to provide for the general welfare. There are at least two approaches that can be taken to answering this question. One is to try to discern the meaning of the phrase, “general welfare,” in the clause in which it occurs. The other is to see the clause within the context of the whole Constitution.
The Taxing Power
First, then, let us look at the clause again, which reads: “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 States . . . .” One thing is certain: Congress is authorized to levy taxes. Is it authorized to do anything else? My view is that it is not. What follows the word “Excises” is restrictive rather than being a grant of powers, restrictive of the taxing power. The operative words, in my reading of the relevant parts, would be that taxes are to be levied to “provide for the common Defence and general Welfare of the United States.”
What was being guarded against by these restrictions was the levying of taxes on the whole people to pay for some benefit to some locale, state, or region of the country. For example, by this reading, taxes could not be properly levied to pay for an undertaking such as the Tennessee Valley Authority. There was a definite interest in the Constitutional Convention to restrict such practices. At one point, Benjamin Franklin proposed that the general government be given “a power to provide for cutting canals where deemed necessary.” Roger Sherman “objected. The expence in such cases will fall on the U. States, and the benefit accrue to the places where the canals may be cut.” Franklin’s motion was defeated by a vote of 8 states to 3.
But let me hasten to add that there is no way to make certain that my interpretation of the words as being restrictive is correct simply by reading the clause and selecting emphases within it. Furthermore, even if it were restrictive to the general welfare, there might still remain a potentially broad power to provide for the general welfare. After all, in ordinary usage the granting of the power to pay for something tacitly authorizes the buying of it. For example, if I tell my daughter that she may write checks to pay for her college expenses, it is a logical inference that I am authorizing such expenses. The same might be expected to apply to statements in the Constitution. To see that they do not it is necessary to place the clause thus far examined in the context of the whole Constitution. Phrases and clauses that may appear to be vague and general when considered in isolation take on much-more precision when viewed from the angle of the whole.
A Limited Government
The Constitution of the United States is no ordinary set of statements or document. It is, if not unique, a very special case among documents. It describes the form for and grants power to a limited government. There are no omnibus grants of power in the Constitution; every power granted is limited in one or more and usually several ways (though not necessarily in the clause that grants it). It does not grant the powers of government generally to the United States government.
What makes the Constitution almost unique is that the government it authorizes has only such powers as are granted to it. Thus, what can be inferred from ordinary speech or, for that matter, the general run of legal documents, is no guide in construing the provisions of the Constitution. It is concerned with granting and limiting power in an arrangement for which there are few, if any, parallels in ordinary life situations.
It is contrary to the whole tenor of the Constitution that the power to provide for the general welfare should have been granted in the sentence authorizing taxation. The men who drew the Constitution did not assume that by granting the power to tax in order to pay debts that they had authorized indebtedness. On the contrary, the very next sentence authorizes Congress “To borrow Money on the credit of the United States.” Nor did they assume that by authorizing taxation to pay for the common defense that they had granted the power to bring into being a military establishment. On the contrary, again, there is a list of powers to accomplish this purpose granted to Congress:
To define and punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations:
To declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies . . . ;
To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces . . . .
If the power to provide for the common defense had been granted in the taxing power, each of these powers would have been implied by it. Such an enumeration of powers would have been redundant. Redundancies are commonplace, of course, in ordinary legal documents nowadays, but the Constitution is remarkably free of them. It is spare, lean, and once stated, repetition of a position is avoided.
Indeed, the powers which the Founders reckoned necessary to the general welfare of the United States are enumerated along with those mentioned above. Among them are the power of Congress to enact uniform laws on bankruptcies, to coin money, to fix standards of weights and measures, to establish post offices and post roads, to give authors and inventors exclusive right for a time to their writings and discoveries, and the like. Undoubtedly, they considered all the powers granted useful or necessary to the general welfare, including the powers of taxation and those for a military establishment. But my point is that the powers granted were enumerated, and those not so enumerated were reserved to the states or to the people.
That did not keep some from claiming or asserting that some object they wanted to achieve by government was provided for in the phrases of the taxation clause, even in the early years of the Republic. The issue came up for President Madison in 1817, when he was presented with a bill for making internal improvements such as roads and canals. He vetoed it on constitutional grounds.
Madison’s Interpretation of Enumerated Powers
Madison said, in part, “The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers . . . .” Regarding the general welfare phrase specifically, he said: “To refer the power in question to the clause ‘to provide for the common defense and general welfare’ would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them . . . ”
President Monroe echoed Madison’s views, and added some of his own, in vetoing a bill for maintaining the Cumberland Road in 1822. He denied that Congress had the power to do this. “If the power exist,” he said, “it must be either because it has been specifically granted to the United States or that it is incidental to some power which has been granted. If we examine the specific grants of power we do not find it among them, nor is it incidental to any power which has been specifically granted.” Among those from which he could not trace the power, he declared, was the clause “to pay the debts and provide for the common defense and general welfare.” In an addendum to his veto message, he included this thought: “Have Congress a right to raise and appropriate the money to any and to every purpose according to their will and pleasure? They certainly have not. The Government of the United States is a limited Government, instituted for great national purposes, and for those only.”
In sum, then, it is most unlikely that the makers of the Constitution would have chosen the phrase, “general welfare,” to authorize the federal government to provide what they understood to be poor relief. It would have violated both their understanding of the meaning of words and the common practice as to what level of government should provide the relief. On the contrary, it appears that relief came to be called welfare to give it a semblance of constitutionality. Indeed, close analysis within the sentence and the context of the Constitution points to the conclusion that the reference “to provide for the general welfare” was the restriction of the taxing power rather than a separate grant of power.
In short, no powers were enumerated granting authority to the federal government either to enact relief measures or to erect what has come to be called a welfare state. Nor is the language of the Constitution especially vague or carelessly general when it is viewed within the context of the whole document. It only appears to be so when wrenched out of context and construed to cover purposes not intended.
1. Curtis P. Nettels, The Roots of American Civilization (New York: Appleton-Century-Crofts, 1963), p. 463.
2. Ibid., p. 462.
3. This information comes from the Oxford English Dictionary.
4. See Arthur M. Schlesinger, Jr., The Politics of Upheaval (Boston: Houghton Mifflin, 1960), pp. 398-99.
5. Henry S. Commager, Documents of American History, vol. II (New York: Appleton- Century-Crofts, 1962), p. 326. Italics added.
6. Charles C. Tansill, ed., Formation of the Union of the American States (Washington: Government Printing Office, 1927), p. 724.
7. James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, vol. II (New York: Bureau of National Literature, 1897), pp. 569-70.
8. Ibid., p. 712.
9. Ibid., p. 736.
Clarence Carson (1926-2003) was a historian who taught at Eaton College, Grove City College, and Hillsdale College. His primary publication venue was the Foundation for Economic Education. Among his many works is the six-volume A Basic History of the United States. Dr. Carson was serving as Chairman of the Social Science Department, Okaloosa-Walton College when the above work was originally published.. Used with permission of the Foundation for Economic Education (the original publisher); the copyright is licensed under a Creative Commons Attribution 4.0 International License.