specify punishment for counterfeitingrnand piracy? Can anyone seriously maintainrnthat punishment of those crimesrndoes not benefit the general welfare?rnMadison was clearly right in representingrnthe “common defense and generalrnwelfare” clause as being descriptive,rnnot expansive, of the powers of Congress.rnMadison’s 1792 summation said justrnthat: The clause is “a sort of caption, orrngeneral description of the specified powersrn. . . having no further meaning, andrngiving no further powers, than what isrnfound in that specification.”rnMadison and the Federalist Hamiltonrnenjoyed the support of Jefferson, whornsaid:rn[To construe the clause as providingrna] distinct and independentrnpower to do any act [Congress]rnmight please for the good of thernUnion . . . would render all thernpreceding and subsequent enumerationsrnof power completelyrnuseless. It would reduce the wholerninstrument to a single phrase, thatrnof instituting a Congress with powerrnto do whatever would be for therngood of the United States…. Certainlyrnno such universal power wasrnintended to be given them. [Thernclause] was intended to lace [Congress]rnup strictly within the enumeratedrnpowers, and . . . withoutrnwhich, as means, those powersrncould not be carried into effect.rnJustice Joseph Story, himself an ardentrncentralist like Hamilton, agreed that thernGeneral Welfare Clause was not a grantrnof any additional power, stating that if thernclause isrnconstrued to be an independentrnand substantive grant of power, itrnnot only renders unimportant andrnunnecessary the subsequent enumerationrnof specific powers, but itrnplainly extends far beyond themrnand creates a general authority inrnCongress to pass all laws whichrnthey may deem for the commonrndefence or general welfare.rnIn the face of all the authoritativernstatements concerning the limited purposernof “general welfare,” how, onernmight ask, could the Court in Butlerrnhave possibly adopted the principle ofrnunlimited power? How could the Courtrnadopt a position that was the antithesis ofrnMadison’s, Jefferson’s, and Story’s pronouncements?rnHow could the Courtrnportray the view it adopted as thern”Hamiltonian view” when Hamiltonrnhimself, writing as a representative of thernFramers in the Federalist, took the oppositernview?rnWe will probably never know. Conspiratorialrnexplanations are possible,rnsuch as that suggested by one amusingrnhistorical curiosity of Butler: Alger Hissrnhelped brief the case for FDR. That oddityrnmight lead the more wary among usrnto ask, “Did Moscow have a hand in therndeath of the rule of law in the UnitedrnStates?” (I’ll leave the answer to that fascinatingrnquestion to others.) A morernlikely explanation is that the Court neverrnrealized Hamilton, in the Federalist, flatlyrnruled out the Court’s interpretation inrnButler—in other words, either Butler’srnlawyers did a bad job or the Court wasn’trnpaying attention.rnWhatever the explanation, there’s norndoubt that the Court turned the Constitutionrninside out and used abominablernreasoning in the process. It is wrong torncondemn Madison’s, Hamilton’s, Jefferson’s,rnand Story’s conclusion, as thernCourt did in Butler, on the ground that itrntransforms the clause into a “mere tautology.”rnTo be sure, it is intellectuallyrnpossible to maintain that the Madisonianrnview renders “common defense and generalrnwelfare” tautological in the sensernthat “taxation and appropriation are orrnmay be necessary incidents of the exercisernof any of the enumerated legislativernpowers,” as the Court put it in Butler.rnBut to take the Butler view that “generalrnwelfare” is a source of general legislativernpower is to commit a far morernegregious tautological sin—a mortal sinrnthat consigns the remaining 17 clauses ofrnenumerated powers into a tautologicalrnhell, in contrast to which Madison’srn”sin” of tautology is the most venial of thernvenial.rnIn tiuth, Madison did not sin at all, forrna common sense reading of the clausernwould recognize “common defense andrngeneral welfare” as words of limitationrnon the legislative power to tax. Read thatrnway, the clause makes complete sense —rnas Jefferson said, it was “intended to lacern[Congress] up strictly within the enumeratedrnpowers” and to give Congressrnthe taxing means of carrying those powersrninto effect.rnNot at all tautological, the clause hadrna dual purpose: It was designed not onlyrnto give Congress the financial means torncarry out the enumerated powers, butrnto ensure that Congress would tax onlyrnfor the common defense and generalrnwelfare — that is, not for particular orrnparochial welfare. Ceneral welfare, indeed,rnis a limitation on the exercise ofrnthe enumerated powers—meaning, forrnexample, that the government shall notrnprovide “national” defense only forrnArkansas nor build post offices only inrnTennessee. Ceneral welfare, in short,rnwas intended to rein in government powerrnand to ensure that it was exercised in arnnondiscriminatory way.rnFar from being the bulwark of federalrnpower in our constitutional system, therngeneral welfare “power” is but a pillar ofrnsalt. And with it collapses the constitutionalrnbasis for much of the federal socialrnengineering we have suffered in the aftermathrnof Buffer and other cases like it.rnLike the Commerce Clause so similarlyrnbastardized, the general welfarernshield has become a sword for ambitiousrnpoliticians, carte blanche for transformingrnour government from one which hadrnonly the powers given it into one havingrnall powers except those expressly deniedrn—the antithesis of the very idea ofrnthe Constitution.rnTo those who would argue that Butlerrnand other cases are too embedded in ourrnconstitutional law to be reversed, onernneed only recall the words of JusticernHolmes on the subject of illegitimaterncourt decisions: “[These decisions are]rnan unconstitutional assumption of powerrnby the courts of the United States whichrnno lapse of time or respectible [sic] arrayrnof opinion should make us hesitate torncorrect.”rnDouglass H. Bartley of Ely, Minnesota,rnis a lawyer and a former Wisconsin taxrnjudge. He is finishing his book. The Kissrnof Judice: The Constitution Crucified.rnPOLITICSrnGoodbye, Dixiernby Robert Stacy McCainrnFor a brief moment in Hartford,rnConnecticut, on October 6, 1996,rnthe fondest dreams of Southern conservativesrnseemed to have come true. Re-rn42/CHRONICLESrnrnrn