The words “general welfare” have had the greatest significance in modern American life of any in the Constitution. Originally regarded by its 18th century Federalist creators as a restraint on federal power, the brake of general welfare has been transformed, retooled by the U.S. Supreme Court into a huge turbine, a supercharger that drives today’s immense federal power grid. In modern times, “general welfare” has become the constitutional touchstone for vast portions of the federal taxing, spending, and regulator)’ apparatus. “General welfare” is the linchpin of federal expansionism, the last straw almost invariably grasped by those whose federal social schemes cannot find constitutional warrant in any enumerated power.

That use of the General Welfare Clause is a development that would have jolted James Madison, the Father of the Constitution, and his close friend Thomas Jefferson—had they envisioned the judicial torture that modern jurists have inflicted on the clause.

Indeed, the abuse of the clause would have startled even the fervent arch-centralist and expansionist Alexander Hamilton. Selling the proposed Constitution to the ratifying states, Hamilton assured readers of Federalist 83 that the new Constitution would grant no “general legislative authority.” Hamilton’s representation alone disembowels the arguments of the federal expansionists.

How did we get from a federal government having only delegated powers to a government vested with “general legislative authority” to do everything not specifically denied in the Constitution? hi large part, the transformation came through the Supreme Court’s contortion of the words “general welfare.” Article I, section 8, gives Congress 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. . . .”

Before ratification, the clause was the subject of controversy over the meaning of “provide for the common Defence and general Welfare.” Opponents of ratification argued (and modern revisionists still argue) that “general welfare” gave Congress an unlimited power to tax and to spend for any purpose that could somehow be related to promoting the national welfare or the public good.

More specifically, the argument was that the words would create a general public purpose power, complete of itself, independent, separate, and distinct from the 17 other enumerated powers in the following clauses. The general power would be limited in scope only by the provision that federal taxing and spending must be for the common defense and general welfare, rather than insular or provincial defense or welfare.

That view originated with Alexander Hamilton in a statement in 1791, just three years after his assurances to the contrary in the Federalist. Reversing himself, Hamilton said that the General Welfare Clause

is as comprehensive as any that could have been used, because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the general welfare.

The contrary view, advanced by James Madison, was that “general welfare” conveyed no independent federal power, but was “a sort of caption or general description,” as Madison put it, of the 17 enumerated powers listed in the following clauses. The so-called “Hamiltonian view” ultimately received the imprimatur of the U.S. Supreme Court in 1936 in United States v. Butler, a truly seminal and tragic case in our constitutional history. Butler was the Actium for limited federal power and the Waterloo for the notion of a binding Constitution.

In Butler, the immediate issue was the constitutionality of Franklin Roosevelt’s Agricultural Adjustment Act of 1933, which imposed a federal tax on processors of agricultural commodities. The proceeds were then distributed to farmers who agreed to limit their production of particular commodities. The government, urging the court to adopt the “Hamiltonian view” of unlimited federal power, argued that the tax was constitutionally justified as an exercise of its power to legislate for the general welfare—i.e., to help end the depression in agriculture by raising farm prices.

Though the Supreme Court ruled against the government on separate grounds, it nonetheless fully embraced the Hamiltonian notions that: Congress had power to tax for whatever purposes could qualify as advancing the general welfare; the General Welfare Clause was an independent source of public-purpose spending power for Congress; and “public purposes” were unlimited in scope. “[T]he power of Congress to authorize expenditures of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution,” declared the Court.

Butler crossed the constitutional Rubicon, cutting the taxing power loose from the restraint of the other enumerated federal powers. Until then, everyone had thought that the taxing power could be used only for funding measures that were exercises of the specific, enumerated powers. Butler changed the constitutional landscape by holding that Congress could tax for any unenumerated purpose that qualified as a public purpose. That opened the door for a Brobdingnagian taxing binge and ultimately the floodgates for the deluge of federal spending that inundates us today.

The only hope that Butler left alive was in one wheezing passage that intimated “general welfare” might be subject to some limitations. But a year later, that faint hope was dashed in Helvering v. Davis, which upheld the establishment of Social Security as a proper use of the general welfare power. In Helvering, Justice Cardozo proved that judicial giants can have bad—even tragically bad—days, as he announced the Court’s almost total surrender to Congress on the subject of constitutional limits to the government’s taxing power:

The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.

The constitutional text shows both Butler and Helvering to be wrong. First, the clause grants no spending power. The power is a taxing power: “to lay and collect Taxes . . . to . . . provide for the common Defence and general Welfare of the United States.” The clause does not say Congress shall have the power “to . . . provide for the common Defence and general Welfare”; that language is textually coupled with “to lay and collect Taxes.” The various spending powers are enumerated in the clauses that follow the taxing power.

Second, “general welfare” must be read in relation to the other powers that follow—powers which outline the ends or purposes for which the taxing power may be invoked. That was precisely the point of an extended argument that Madison made in Federalist 41:

It has been urged and echoed that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction.


Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some colour for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. . . .

But what colour can the objection have when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity . . . [Emphasis added.]

To further assuage fears of a new federal leviathan, Madison pointed out that “general welfare” in the new Constitution was the same terminology used in the Articles of Confederation:

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the Articles of Confederation. The objects of the Union among the states, as described in article third, are, “their common defense, security of their liberties, and mutual and general welfare.” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and the general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

Before 1791, Hamilton agreed fully with Madison that providing for the general welfare was not a separate power. In Federalist 83, he said:

The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.

Hamilton’s statement and Madison’s extended argument are examples of the ancient legal maxim, “Expressio unius est exclusio alterius,” meaning, as Hamilton put it in Federalist 83, “A specification of particulars is an exclusion of generals.” In the Constitution, the expression of the specific enumerated powers is the exclusion of all unenumerated powers.

In other words, it is impossible to argue rightly that “common defense and general welfare” enhances the federal legislative jurisdiction with an additional power to tax or spend in the “common defense and general welfare.” If it did, why did the Framers go to the trouble of enumerating 17 other powers (and still others elsewhere), all of which would have been subsumed by the one clause standing alone?

Why would it have been necessary, for example, for the Framers to equip Congress with a separate and specific power “[t]o raise and support Armies,” when that power is easily embraced in the general language, “to . . . provide for the common Defence and general Welfare”? Why would it have been necessary to give Congress the separate and specific power “to establish Post Offices and post Roads,” when that specific power satisfies anyone’s test of serving the “general welfare”? And why would it be necessary to give Congress jurisdiction to specify punishment for counterfeiting and piracy? Can anyone seriously maintain that punishment of those crimes does not benefit the general welfare?

Madison was clearly right in representing the “common defense and general welfare” clause as being descriptive, not expansive, of the powers of Congress. Madison’s 1792 summation said just that: The clause is “a sort of caption, or general description of the specified powers . . . having no further meaning, and giving no further powers, than what is found in that specification.”

Madison and the Federalist Hamilton enjoyed the support of Jefferson, who said:

[To construe the clause as providing a] distinct and independent power to do any act [Congress] might please for the good of the Union . . . would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States. . . . Certainly no such universal power was intended to be given them. [The clause] was intended to lace [Congress] up strictly within the enumerated powers, and . . . without which, as means, those powers could not be carried into effect.

Justice Joseph Story, himself an ardent centralist like Hamilton, agreed that the General Welfare Clause was not a grant of any additional power, stating that if the clause is

construed to be an independent and substantive grant of power, it not only renders unimportant and unnecessary the subsequent enumeration of specific powers, but it plainly extends far beyond them and creates a general authority in Congress to pass all laws which they may deem for the common defence or general welfare.

In the face of all the authoritative statements concerning the limited purpose of “general welfare,” how, one might ask, could the Court in Butler have possibly adopted the principle of unlimited power? How could the Court adopt a position that was the antithesis of Madison’s, Jefferson’s, and Story’s pronouncements? How could the Court portray the view it adopted as the “Hamiltonian view” when Hamilton himself, writing as a representative of the Framers in the Federalist, took the opposite view?

We will probably never know. Conspiratorial explanations are possible, such as that suggested by one amusing historical curiosity of Butler: Alger Hiss helped brief the case for FDR. That oddity might lead the more wary among us to ask, “Did Moscow have a hand in the death of the rule of law in the United States?” (I’ll leave the answer to that fascinating question to others.) A more likely explanation is that the Court never realized Hamilton, in the Federalist, flatly ruled out the Court’s interpretation in Butler—in other words, either Butler‘s lawyers did a bad job or the Court wasn’t paying attention.

Whatever the explanation, there’s no doubt that the Court turned the Constitution inside out and used abominable reasoning in the process. It is wrong to condemn Madison’s, Hamilton’s, Jefferson’s, and Story’s conclusion, as the Court did in Butler, on the ground that it transforms the clause into a “mere tautology.” To be sure, it is intellectually possible to maintain that the Madisonian view renders “common defense and general welfare” tautological in the sense that “taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers,” as the Court put it in Butler.

But to take the Butler view that “general welfare” is a source of general legislative power is to commit a far more egregious tautological sin—a mortal sin that consigns the remaining 17 clauses of enumerated powers into a tautological hell, in contrast to which Madison’s “sin” of tautology is the most venial of the venial.

In truth, Madison did not sin at all, for a common sense reading of the clause would recognize “common defense and general welfare” as words of limitation on the legislative power to tax. Read that way, the clause makes complete sense—as Jefferson said, it was “intended to lace [Congress] up strictly within the enumerated powers” and to give Congress the taxing means of carrying those powers into effect.

Not at all tautological, the clause had a dual purpose: It was designed not only to give Congress the financial means to carry out the enumerated powers, but to ensure that Congress would tax only for the common defense and general welfare — that is, not for particular or parochial welfare. General welfare, indeed, is a limitation on the exercise of the enumerated powers—meaning, for example, that the government shall not provide “national” defense only for Arkansas nor build post offices only in Tennessee. General welfare, in short, was intended to rein in government power and to ensure that it was exercised in a nondiscriminatory way.

Far from being the bulwark of federal power in our constitutional system, the general welfare “power” is but a pillar of salt. And with it collapses the constitutional basis for much of the federal social engineering we have suffered in the aftermath of Buffer and other cases like it. Like the Commerce Clause so similarly bastardized, the general welfare shield has become a sword for ambitious politicians, carte blanche for transforming our government from one which had only the powers given it into one having all powers except those expressly denied —the antithesis of the very idea of the Constitution.

To those who would argue that Butler and other cases are too embedded in our constitutional law to be reversed, one need only recall the words of Justice Holmes on the subject of illegitimate court decisions: “[These decisions are] an unconstitutional assumption of power by the courts of the United States which no lapse of time or respectible [sic] array of opinion should make us hesitate to correct.”