Can anybody explain the "general Welfare" clause to me?

[T Roosevelt]

I've managed to get trapped in a debate with a self-proclaimed "christian libertarian" that has touched on the constitutionality of welfare programs (in general) and the government's restrictions through Article I Section 8.

After doing some basic research, looking into some of the Founder's statements (particularly Jefferson and Madison), and sorting through many libertarian websites (where most of the discussion seems to be), I've come to the conclusion that nobody really knows.

Any Constitutional scholars (hell, even psuedo-scholars) out there that can help?

[Vickers]

1. "general welfare" is the general well-being

In the context of Article 1, it is talking about the well-being of the several States (as they said back then).

I think what it is mainly referring to is the promotion of the States equally, and the protection of the States equally, and also taxation of the States equally. Equal burden, equal benefit.

[Spinzonner]

2. Depends who's channeling the Founding Fathers

[Inland]

3. Well, let's back up

It is accepted that the federal government is a government of enumerated powers, that is, for it to have authority to pass any particular law, there must be a specific grant of power in the US constitution for it. So you have Art I section 8, 14th amendment, 15th, and some others. But every federal law has to be tied to a grant of power.

Unlike States, which are governments of general "police powers", that is, they can pass laws on any subject that the legislature wants, for the general health, welfare, and safety of their respective citizens. Federal law is supreme in the confines of the enumerated powers and the constitution, but each state is otherwise sovereign.

If you are looking at Art I, section 1, and suggesting that all congress must do in passing a law is find that it is consistent with the general welfare of the country (welfare as defined as "the good of"), you would be wrong.

However, some of the provisions are broad enough to drive most of our gov programs through. Regulating interstate commerce, combined with Art I secion 19 (allowing all laws necessary to enact the other powers) was enough to pass civil rights laws. Howzat, you ask? The lack of hotel facilities that took blacks was a burden on interstate commerce.

So your libertarian friend--who probably also pretends to be a strict constitutional constructionist--finds that welfare, education grants, securities laws, highways, etc, are all pursuant to a power over interstate commerce. The founders would be surprised, not because the interpretation of the constitution has changed, but the fact that almost no commerce in our modern society is actually intRAstate. In 1791, with largely subsistence farming, small cities, and ten miles to Boston being a days ride by horse, it wasn't that big a power. Now it is.

[T Roosevelt]

5. That's an interesting take on the subject

taking advantage of interstate commerce. Kind of an unintended consequence.

Actually, he doesn't seem to justify any of those programs (education, securities, etc); he believes they are all unconstitutional.

[atre]

4. Hmmm

I don't think the preamble has ever been held to confer rights to the federal government or in any way limit its power. I can't even think of a Supreme Court decision that has ever even discussed the language of the Preamble, to be honest.

The source of nearly all federal power today is the Commerce Clause. At one time the Clause was interpretted much more restrictively, but the realties of the increasingly interstate and global economy compelled the Court to reverse course and abandon prior doctrine. The modern conception of the Clause, as interpretted by the Supreme Court, holds that whenever any economic activity or noneconomic activity has a "substantial effect" on interstate commerce, it can be regulated by the federal government. Purely intrastate economic activity (like grain production) can be aggregated to achieve the substantial effects standard, but purely intrastate noneconomic activity (like guns in schools or spousal abuse) cannot.

Almost all federal legislation now includes jurisdictional hooks in order to place it within the confies of the Commerce Clause. These take three forms: (1) Regulation of the instrumentalities of interstate commerce (phone system, highways, boats, etc.); (2) Regulation of purely interstate activity (e.g. regulation of parental kidnapping only when the parent crosses state lines); or (3) A statement in the legislation that Congress has concluded that the activity being regulated has a "substantial effect" on interstate commerce.

(The Commerce Clause has also been held to have a negative effect on the power of the states, but the "Dormant Commerce Clause" as it is called is far too complex for a concise explanation here.)

Another very important source of federal constitutional power is the Spending Clause. The Supreme Court has held that the federal government is free to use its spending power to impose conditions on the states, notwithstanding the fact that the conditions are unrelated to interstate commerce. For example, the federal government can pass a bill which drastically reduces highway funding to states that do not have a minimum drinking age of 21. The states can be, in effect, bribed to pursue the policies preferred by the federal government.

There are other insignificant sources of power (Treaty Power, War Power, etc.), but I don't see how these may relate to your inquiry.

[T Roosevelt]

6. How does this relate to, say, Headstart, or Social Security?

What is the commerce justification for either of these (or other similar programs)?

[atre]

8. I don't think the CC applies to either

Neither regulate particular activity, but instead involve the disbursement of funds by the federal government.

As I understand it, there is no constitutional restriction on what the government can do with the funds it generates (by taxing or printing up money). The only time "federalism" comes into play is when the government is regulating or proscribing particular activities that are partially or wholly intrastate.

[Massacure]

7. I don't give a rats ass if the federal or state government does it

All I care is that it gets done.

Personally I would like to see the states receive some power back from the federal government, but then the states would be unequal. There has to be a balance.

[sangh0]

9. It's the "necesary and proper" clause you're looking for

When Alexander Hamilton wanted to create a national bank, the politicians who were to become the anti-Federalists, with James Madison in the lead, argued that the Constitution did not give the government the power to do such a thing. This was the precursor to "strict constructualism". They argued that nothing in the Constitution said anything about granting the govt the power to create a national bank. So Hamilton sprung into action.

He informed a colleague and ally of his, Elias Boudinot of a quote that Madison had wrote in the Federalist Papers (#44). Boudinot publicly embarrassed Madison by going to Congress and reading from FP#44 which contradicted Madison's current position.

"No axiom is more clearly established in law or in reason than whenever the end is required, the means are authorized; wherever a general power to do a thing is givenm every particular power for doing it is included"

(The above comes from "Alexander Hamilton" by Ron Chernow (pg 350))

Even the freepers would agree that the Constitution gives our govt the power to promote the general welfare. The debate is over what other powers (ex to tax, to hire, to buy, to regulate, etc) the govt can claim in order to do so. According to both the Federalists (ex Hamilton, Washington) and the anti-Federalists (ie Madison, Jefferson) "necessary and proper" was the standard.

"Necessary and proper" appears in Art I, Sec 8

[PurityOfEssence]

10. "giving a fuck about your people" is the gist of it

It can and has been interpreted many ways, but at its base level, the issue is that one is to do things that benefit the broad sweep of the populace. "General" is that which applies "at large" to the most different classes in society.

Essentially, things that give one group breaks over others is against the spirit of the thing, as is just cutting everyone adrift to founder or sail as they can. Think fairness.

Tell your Christian Libertarian that he/she's bowdlerizing the faith and excising out all of the core responsibilities to the weak and downtrodden, and is probably all petulently wrapped-up with the insidious selfishness of personal salvation and the myriad of greedy and cold justifications trotted out to justify not giving a tinker's cuss about anyone else. Then mock the naif with questions about consequences, both for the individuals and the society that has to deal with crisis intervention and human disaster. After that, remind him/her that objectivism is the folly of adolescence, and ask him/her why he/she's so blisteringly oblivious to human reality, stubbornly demanding to live in a self-righteous delusion of human competence.