General Welfare clause

The General Welfare clause is a clause found in Article I, Section 8 of the Constitution of the United States of America. It is found int the following sentence:

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

In modern treatment, the General Welfare clause is frequently used to argue that congress has a blanket power to provide for the general welfare. However, this defies both original intent and the basic rules of grammar. It also makes legal analysis hopelessly complicated and introduces many avenues for tyranny.

Intent

Regarding this clause, Thomas Jefferson stated the following:

"For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless." (Thomas Jefferson, "Jefferson's Opinion on the Constitutionality of a National Bank : 1791", Avalon Project)

Grammar

As is common in the English language, there are multiple ways to parse the sentence.

Generally, "the Congress" is the subject, and "shall have" is the verb (with "shall" being an auxiliary verb).

Congress is definitely going to have power, but the following phrases are a bit trickier, which confounds many readers.

The preposition, "To" describes a broad type of relationship between words. It can relate the following phrase to the preceding noun (eg. I saw the road to Timbuktu.) or it can relate the phrase to the action, functioning adverbially. (eg. I sent the package to Timbuktu.) It might even be used ambiguously, or dually. (I traveled the road to Timbuktu.)

Hence we might imagine that congress shall have power, for the purpose of laying and collecting taxes, duties, imposts, and excises, or we might imagine that laying and collecting Taxes, Duties, Imposts and Excises is descriptive of the power that congress shall have. (ie. The power is laying and collecting taxes, duties, imposts, and excises).

In reality, both interpretations seem valid and function equivalently for all practical purposes. That is, if the sentence is describing the purpose, then that purpose limits the scope of generic power to the laying and collecting of taxes, duties, imposts, and excises, effectively making it so that the power is the laying and collecting of taxes, duties, imposts, and excises. but most people will read the sentence in the latter way. It is irrelevant though.

However, now we come to the clause where the general welfare is mentioned, and it begins with another "to", and similarly, this can be directly describing a relationship with the preceding noun, or with the action. Hence we have 2x2 = 4 interpretations:

1. The Congress shall have Power for the purpose of laying and collecting Taxes, Duties, Imposts and Excises, for the purpose of paying the Debts and providing for the common Defence and general Welfare of the United States
2. The Congress shall have Power for the purpose of laying and collecting Taxes, Duties, Imposts and Excises, which laying and collecting of Taxes, Duties, Imposts and Excises is toward the object of paying the Debts and providing for the common Defence and general Welfare of the United States
3. The Congress shall have Power, being power to lay and collect Taxes, Duties, Imposts and Excises, for the purpose of paying the Debts and providing for the common Defence and general Welfare of the United States
4. The Congress shall have Power, being power to lay and collect Taxes, Duties, Imposts and Excises, which laying and collecting of Taxes, Duties, Imposts and Excises is toward the object of paying the Debts and providing for the common Defence and general Welfare of the United States

If there were an 'and' before the second "to", (ie "... Excises, and to pay the Debts ..."), then the second clause is joined to the first and relates to the same part of the preceding phrase, either the power, or the action. Then, an interpretation whereby the General Welfare clause is identifying a power, or, equivalently, a purpose for which generic power is permissibly wielded, becomes possible, and even necessary. However, there is no "and" to serve that purpose, and it would become extremely awkward to suggest that it was intentionally omitted, or that it was accidentally omitted, especially given the exegesis provided by Thomas Jefferson on the meaning. We must then admit that the sentence was not simply poorly constructed, but was intentionally constructed, such that, however it is read, the General Welfare clause acts as a qualifier on the power of congress to tax, rather than as a separate power apart from taxation.

Bill of Rights

The Bill of Rights was considered by many to be redundant, since the federal government was limited by the Constitution's enumeration of powers.

James Madison, for example, stated, "I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted."

In Federalist 84, Hamilton argued against a Bill of Rights, arguing, "I go further, and affirm, that Bills of Rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"

Similarly, we have James Wilson, who, in the 6 Oct 1787, argued "This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence."

It seems, then, quite contrary to the intention of the founders to imagine that the general welfare clause is the ambiguous and broad grant of generic power that it must be, if it is treated as an enumerated power. We must understand that no broad ambiguous power must have been intended, for it would have threatened all rights which were supposed to have been protected redundantly.

As further witness, we further have the 9th and 10th amendments which are as follows:

• Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

• Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This presumption, that there exist other rights retained by the people, and powers not delegated to the federal government by its Constitution, defies any presumption that any general power, such as to promote the general welfare, exists. It is clear that any interpretation that imagines such a general power to exists, must be hopelessly contradicted by the clear understanding of the people who wrote and ratified the Constitution and, inclusively, those that wrote and ratified the Bill of Rights.