-Caveat Lector-
~~for educational purposes only~~
The General Welfare
by Clarence B. Carson
[Dr. Carson has written and taught extensively,
specializing in American intellectual history.
He is the author of several books. Among them
are Organized Against Whom? The Labor Union in
America and the comprehensive A Basic History
of the United States. This article is reprinted
from The Freeman, August 1983.]
"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 fred 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 ks 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 nineteenth-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, 'øThe 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." [1] 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." [2] 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 twentieth 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." [3] 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
dearly toward the general 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." [4]
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 ...." [5]
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 fred 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
expense in such cases will fall on the United States,
and the benefit accrue to the places where the canals
may be cut." [6] 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 nm 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 .... " [7]
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 fred 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." [9]
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 in tended.
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: AppletonCentury-Crofts, 1962),
p. 326. Italics added.
6. Charles C. Tansill, ed., Formation of the Union of
the American States (Washington, D.C.: 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.
DECLARATION & DISCLAIMER
==========
CTRL is a discussion and informational exchange list. Proselyzting propagandic
screeds are not allowed. Substance—not soapboxing! These are sordid matters
and 'conspiracy theory', with its many half-truths, misdirections and outright
frauds is used politically by different groups with major and minor effects
spread throughout the spectrum of time and thought. That being said, CTRL
gives no endorsement to the validity of posts, and always suggests to readers;
be wary of what you read. CTRL gives no credeence to Holocaust denial and
nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
Archives Available at:
http://home.ease.lsoft.com/archives/CTRL.html
http:[EMAIL PROTECTED]/
========================================================================
To subscribe to Conspiracy Theory Research List[CTRL] send email:
SUBSCRIBE CTRL [to:] [EMAIL PROTECTED]
To UNsubscribe to Conspiracy Theory Research List[CTRL] send email:
SIGNOFF CTRL [to:] [EMAIL PROTECTED]
Om
