bra in which discretion is at large.rnThe discretion, however, is notrnconfided to the courts. The discretionrnbelongs to Congress, unlessrnthe choice is clearly wrong, a displayrnof arbitrary power, not an exercisernof judgment.rnThe constitutional text shows bothrnButler and Helvering to be wrong. First,rnthe clause grants no spending power.rnThe power is a taxing power: “to lay andrncollect Taxes . . . to . . . provide for therncommon Defence and general Welfarernof the United States.” The clause doesrnnot say Congress shall have the power “torn. . . provide for the common Defencernand general Welfare”; that language isrntextually coupled with “to lay and collectrnTaxes.” The various spending powersrnare enumerated in the clauses that followrnthe taxing power.rnSecond, “general welfare” must bernread in relation to the other powers thatrnfollow—powers which oudinc the endsrnor purposes for which the taxing powerrnmay be invoked. That was precisely thernpoint of an extended argument thatrnMadison made in Federalist 41:rnIt has been urged and echoed thatrnthe power “to lay and collect taxes,rnduties, imposts, and excises, to payrnthe debts, and provide for the commonrndefense and general welfarernof the United States,” amounts tornan unlimited commission to exercisernevery power which may be allegedrnto be necessary for the commonrndefense or general welfare.rnNo stronger proof could be givenrnof the distress under which thesernwriters labour for objections, thanrntheir stooping to such a misconstruction.rnHad no other enumeration orrndefinihon of the powers of thernCongress been found in the Constitutionrnthan the general expressionsrnjust cited, the authors of thernobjection might have had somerncolour for it; though it woidd havernbeen difficult to find a reason forrnso awkward a form of describing anrnauthority to legislate in all possiblerncases. . ..rnBut what colour can the objectionrnhave when a specification ofrnthe objects alluded to by these generalrnterms immediately follows,rnand is not even separated by arnlonger pause than a semicolon? Ifrnthe different parts of the same instrumentrnought to be so expounded,rnas to give meaning to every partrnwhich will bear it, shall one part ofrnthe same sentence be excluded altogetherrnfrom a share in the meaning;rnand shall the more doubtfulrnand indefinite terms be retained inrntheir full extent, and the clear andrnprecise expressions be denied anyrnsignification whatsoever? For whatrnpurpose could the enumeration ofrnparticular powers be inserted, ifrnthese and all others were meant tornbe included in the preceding generalrnpower? Nothing is more natural norrncommon than first to use a generalrnphrase, and then to explain andrnqualify it by a recital of particulars.rnBut the idea of an enumeration ofrnparticulars which neither explainrnnor qualif)’ the general meaning,rnand can have no other effect thanrnto conformd and mislead, is an absurdit)’..rn. [Emphasis added.]rnTo further assuage fears of a new federalrnleviathan, Madison pointed out thatrn”general welfare” in the new Constitutionrnwas the same terminology used inrnthe Articles of Corrfederation:rnThe objection here is the more extraordinar}’,rnas it appears that thernlanguage used by the convention isrna copy from the Articles of Confederation.rnThe objects of the Unionrnamong the states, as described inrnarticle third, are, “their commonrndefense, security of their liberties,rnand mutual and general welfare.”rnThe terms of arhcle eighth are stillrnmore identical: “All charges of warrnand all other expenses that shall bernincurred for the common defensernor general welfare, and allowed byrnthe United States in Congress,rnshall be defrayed out of a commonrntreasury,” etc. A similar languagernagain occurs in article ninth. Construerneither of these articles by thernrules which would justify the constructionrnput on the new Constitution,rnand they vest in the existingrnCongress a power to legislate in allrncases whatsoever. But what wouldrnhave been thought of that assembly,rnif, attaching themselves tornthese general expressions, and disregardingrnthe specifications whichrnascertain and limit their import,rnthev had exercised an unlimitedrnpower of providing for the commonrndefense and the general welfare?rnI appeal to the objectorsrnthemselves, whether they would inrnthat case have employed the samernreasoning in justification of Congressrnas they now make use ofrnagainst the convention. How difficultrnit is for error to escape its ownrncondemnation!rnBefore 1791, Hamilton agreed fullyrnwith Madison that providing for the generalrnwelfare was not a separate power. InrnFederalist 83, he said:rnThe plan of the convention declaresrnthat the power of Congress,rnor, in other words, of the nationalrnlegislature, shall extend to certainrnenumerated cases. This specificationrnof particulars evidently exeludesrnall pretension to a generalrnlegislative authority, because an affirmativerngrant of special powersrnwould be absurd, as well as useless,rnif a general authority was intended.rnHamilton’s statement and Madison’srnextended argument are examples of thernancient legal maxim, “Expressio unius estrnexclusio alterius,” meaning, as Hamiltonrnput it in Federalist 83, “A specification ofrnparticulars is an exclusion of generals.”rnIn the Constitution, the expression of thernspecific enumerated powers is the exclusionrnof all unenumerated powers.rnIn other words, it is impossible to arguernrightiy that “common defense andrngeneral welfare” enhances the federalrnlegislative jurisdiction with an additionalrnpower to tax or spend in the “commonrndefense and general welfare.” If it did,rnwhy did the Framers go to the trouble ofrnenumerating 17 other powers (and stillrnothers elsewhere), all of which wouldrnhave been subsumed by the one clausernstanding alone?rnWliy would it have been necessary, forrnexample, for the Framers to equip Congressrnwith a separate and specific powerrn”[t]o raise and support Armies,” whenrnthat power is easily embraced in the generalrnlanguage, “to . . . provide for therncommon Defence and general Welfare”?rnWhy would it have been necessaryrnto give Congress the separate andrnspecific power “to establish Post OflFicesrnand post Roads,” when that specific powerrnsatisfies anyone’s test of serving thern”general welfare”? And why would it bernnecessary to give Congress jurisdiction tornAPRIL 1999/41rnrnrn