The General Welfare Amendment
Restoring The Legal Teeth Of The Preamble
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While contemplating the continuing decline of the quality of life an ever increasing majority of Americans are experiencing, it occurred to me this did not comport with my vague recollection of what the government was intended to achieve as described in the Preamble of the Constitution. Key words in the preceding sentence being “vague recollection,” I decided to revisit what the Preamble actually says:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
This single sentence is the statement of the purpose of all that follows, which is mostly about the processes of the government being stood up. The founders presumably intended the elected officials of the future government would use the six objectives stated in the preamble as beacons for piloting the ship of state, and similar adherence to them would be required of the appointees put in place to execute the laws they enacted. Our country's track record on this has been spotty at best, which is understandable given that we are all flawed, imperfect human beings.
The Preamble Defanged
This situation begs the question of whether or not the preamble has any legal teeth. I am not a lawyer so I emailed a friend who is, and her reply included a link to a book proposal written some years back by one of her law school mentors that contains an extensive discussion of the issue. The gist of its response to the question is “It once did but not any more.” As Professor Erwin Chemerinsky of the University of California, Berkeley, School of Law writes in “Fighting for the Constitution:”
“In the foundational case of Marbury v. Madison, in 1803, the Court declared “[i]t cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”
Elsewhere in the proposal he writes, presumably citing the Preamble’s first seven words:
“Early in American history . . . the justices used the Preamble as part of constitutional interpretation. In another foundational case for American government, McCulloch v. Maryland (1819), Chief Justice John Marshall invoked the Preamble and stressed the importance of its language that the government was created by the people. The State of Maryland claimed that it was the state governments who formed the United States and that therefore it is the states who are sovereign. Maryland used this to argue that it was constitutional for it to tax the Bank of the United States. The Court rejected Maryland’s argument, quoting the Preamble and declaring: ‘The government proceeds directly from the people; is ‘ordained and established,’ in the name of the people.”
But Chemerinsky also writes of a case decided by the Supreme Court nearly a century later about an issue that remains contentious to this day:
“The Supreme Court set the tone in 1905, in Jacobson v. Massachusetts, a case about the constitutionality of compulsory vaccination laws, when the Court ruled that laws cannot be challenged or declared unconstitutional based on the Preamble. The Court declared: ‘Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.’ Since then, the Court has taken this to mean that the Preamble essentially is to be ignored.”
And he sums up the situation since then as follows:
“In the few occasions over the last century in which the Preamble has been mentioned, the Supreme Court has summarily rejected its relevance to constitutional interpretation and decisions. The result is that [the Preamble] has played no role in constitutional arguments and analysis. Constitutional law textbooks, including mine, never discuss it. But this has been a mistake because the Preamble states the ideals for the Constitution and for the Republic.”
Well, there you have it. The legal teeth of the Preamble were pulled 119 years ago, and that decision has been reaffirmed since. On the surface, the United States of America seems to have stumbled through the rest of the rest of the 1900s reasonably well considering the tiller on the ship of state has become the prize in a game of keep-away. But as we approach the end of the first quarter of the following century it’s apparent since that turning things here in the US of A have gone seriously south. Perhaps there's a way we can fit the Preamble with dental implants so to speak.
Can Anything Be Done?
It is clear a lot would be gained if the legal bite of the Preamble could be restored. At first blush there are two ways in which this might happen: A court case that cites the Preamble and successfully overcomes the Jacobson vs. Massachusetts precedent established in 1905; and a Constitutional amendment. Both of these would be long, drawn out processes, with high bars to clear for success. However the obstacles to achieving a lasting, decisive outcome are much greater behind Door A, the one that relies solely on the court system. The doctrine of stare decisis, that is not deviating from precedents without very good reasons, is deeply entrenched in the American legal system, as well it should be so as to maintain consistency in and respect for the law. Even if a case citing the Preamble were to get a favorable SCOTUS decision at the end of its long trek through the court system, a similar case a decade or two later might reverse it, citing Jacobson and other earlier precedents.
The amendment alternative is preferable first of all because it will be decisive. An amendment consisting of a clearly worded sentence or two that succinctly requires that the meat of the preamble be adhered to when bills are under consideration in Congress can not be ignored.
Also, the process of proposing and enacting an amendment will attract much more public interest than would a court case wending its way through the judicial system. Because the preamble is the epitome of “mother and apple pie” language, a popular movement can be built around it that can bring together people from across the political spectrum. Such a movement will be needed to push the amendment through Congress and the state legislatures for ratification.
Crafting the wording for a proposed amendment is a job for an experienced Constitutional lawyer, but a layperson can make some useful observations and suggestions from a functional standpoint. A challenge that is apparent at first blush is the fact that dealing with the preamble’s six objectives will be messy and cumbersome. Perhaps that can be overcome by examining the inter relationships of those objectives.
A Closer Look At The Preamble
If the Constitution had been written in recent times instead of 237 years ago, the Six Points embedded in that single sentence could well have been separated out as numbered Points, so let’s do that for convenience as we take a closer look at it:
“We the People of the United States, in Order to:
form a more perfect Union
establish Justice
insure domestic Tranquility
provide for the common defence
promote the general Welfare
and secure the Blessings of Liberty
to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The first Point, “form a more perfect union,” is an outcome of the other five. By using the modifier “more” the founders showed they were well aware that perfection is beyond reach given that they, like we as their successor citizens of the United States of America, are all flawed human beings. As for today, as the first quarter of the 21st century draws to a close, people who believe that the Union is now moving toward perfection rather than accelerating away from it are few and far between.
Of the other five Points, one of them, number 5, is interrelated both causatively and effectively with the remaining four. “To promote the general welfare,” or failure to do so, is not only itself dependent on how well, or poorly, the processes of government affect those four, but it also affects the degrees to which those other four stated purposes can be achieved. The extent to which justice is biased, to which the populace is unruly, to which the country is not effectively defended, and to which personal liberty is unjustifiably constrained all degrade the general welfare of the people. Similarly, when laws are passed that undermine the general welfare, they can be counted on to retard and/or reverse progress toward the achievement of some or all of the other four.
A General Welfare Amendment
Taken in sum these facts suggest there may be a way to fit the Preamble with Constitutional dental implants to restore its legal bite. The teeth would focus on “general Welfare” and take the form of a Constitutional amendment that might read as follows:
Section 1. Laws enacted in accord with this Constitution shall promote the general welfare of all the people of the United States.
Section 2. If Section 1 of this amendment is deemed to conflict with other requirements stated in this Constitution including its amendments, Section 1 of this amendment shall prevail.
As we have seen, the notion of General Welfare is what ties the Six Points of the Preamble together. And together, the two sections of the amendment require the drafters of future legislation to focus, first and foremost, on assuring that all of the six objectives in the preamble are met. The amendment also provides the Constitutional basis for challenging past legislative and judicial actions that are demonstrably undermining the general Welfare of the American people.
It’s time for another strategy
In 2011 legal scholar Lawrence Lessig published his book Republic, Lost: How Money Corrupts Congress – and a Plan to Stop It in response to the Citizens United v. Federal Election Commission decision handed down by the Supreme Court the previous year. In the book the author argues there are several places in the Constitution that implicitly prohibit what he calls “dependence corruption,” which he defines as situations in which “individuals within that institution become dependent upon an influence that distracts them from the intended purpose of the institution. The distracting dependency corrupts the institution.” He goes on to show that the Citizens United decision was the culmination of a series of legislative and judicial actions that have rendered dependence corruption endemic in the United States government. But unlike the quid pro quo corruption of bribery, dependence corruption it's not a prosecutable crime. It is inherent in the institution, and can only be reduced or eliminated by changing the ground rules according to which that institution conducts its business.
In an opinion in a 1919 free speech case, Justice Oliver Wendell Holmes Jr. made a comment that has been frequently paraphrased as, “Free speech cannot include the right to falsely shout ‘fire!’ in a crowded theater.” Nor should it include the right for the ultra rich to deploy their filthy lucre in ways that catastrophically undermine the general Welfare of the American people. A while back a tweet by John Cleese of Monty Python fame recently crossed the screen of my laptop which read: “When I lived in Santa Barbara, I asked one of the nice rich people why the very rich are so greedy. He replied " John, you've got it wrong. They're not greedy because they're rich. They're rich because they're greedy." People who are enveloped by greed deploy some of their wealth to both tilt the economic playing field further in their favor, and also to promote their own pet policies in other areas of society. In both cases their political spending is more likely to be a detriment to the general Welfare rather than a promoter of it. These super wealthy people are commonly referred to as the Donor Class. Perhaps it's time to start calling them the Greed Class.
Toward the end of his book Mr. Lessig suggests four strategies for countering the effects of the Citizens United decision. Thirteen years on none of them has gained significant traction. This is by no means a criticism of him or his work. Just by writing and publishing this book he has done more for the cause of good governance than 99.99% of the people in the USA, not to mention how well it describes and clarifies the issues involved. In view of how passionate he is about restoring good governance, it’s likely he encourages consideration of other suggestions besides the four he proposed.
None of Mr. Lessig's strategies call for a Constitutional amendment, presumably because of the high Article V bars that must be cleared in order for it to become effective. Yet I believe that a strategy built around a general Welfare amendment might have a better-than-expected chance of clearing those hurdles for several reasons.
First, the amendment is only requiring that language already in the Constitution – the language of its very first sentence – be restored to the same legal footing as everything that follows. These words had teeth for the first several decades of the United States but they were extracted by subsequent Supreme Court decisions. All the general Welfare amendment will do is implant replacement teeth. This is not some radical departure from the spirit of the Constitution.
Recently 377 members of the House of Representatives voted for a resolution that is a frontal assault on the freedom of speech that is guaranteed by the First Amendment. (As I write similar legislation is moving through the Senate.) That resolution was then used to induce college and university administrators across the country to request state and local police forces enter their campuses and shut down peaceful demonstrations that were protesting ethnic cleansing being conducted by a foreign government. These unnecessarily violent law enforcement actions were another frontal assault on First Amendment, this time on the right to free assembly.
I believe, or perhaps I should say I hope, the vast majority of these 377 votes were motivated largely by dependence corruption, and I suspect many of the House members who cast them did not sleep well for a night or two. When bills for the general welfare amendment come before Congress at some future date, those of the 377 who agonized over their votes and are still in Congress (as well as their counterparts in the Senate) will be receptive to the arguments put forth by the General Welfare Amendment Movement in spite of intense greed class pressure opposing it.
Finally there are the voters. The vast majority of the American people, even those who are well informed, have no clue that the purposes stated in the preamble have not been judicially enforced for over a century. When they learn this fact, and when they learn there is a proposed amendment that will restore its teeth, candidates for Congress will endlessly face the question, “Where do you stand on the General Welfare amendment?” And when it clears Congress the will face the state legislators will face the same question. Being against it will be a hard sell.
Going Forward
It will take a broad-based movement to push the general Welfare amendment through Congress and thence through 38 state capitols for ratification. I am not the person to lead its formation or management, not least because I am in my mid 80s. Therefore I shall close by recycling a mid-20th century Madison Ave trope as I raise this post on the flagpole of the Internet to see if anyone salutes. I look forward to your comments and thank you for your attention.
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Recovering the Lost General Welfare Clause
David S. Schwartz [63 William & Mary Law Review 857 (2022)]
Abstract:
The General Welfare Clause of Article I, Section 8, Clause 1 of the Constitution enumerates a power to “provide for the common defense and general welfare.” A literal interpretation of this clause (“the general welfare interpretation”) would authorize Congress to legislate for any national purpose, and therefore to address all national problems— for example, the COVID-19 pandemic—in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called “Spending Power,” a power only to spend, but not to regulate, for national purposes.
This Article argues that both the text and the drafting history of the General Welfare Clause support reading it as a power to regulate on all national problems, such as environmental degradation, violence against women, and pandemic disease. It is only our superficial ideological commitment to enumerationism—the doctrine of limited enumerated powers—that causes us to depart from the most evident textual interpretation of the General Welfare Clause. Recovering the lost General Welfare Clause is particularly important at this moment in constitutional history, when a conservative and supposedly originalist Supreme Court is poised to greatly constrict federal power to respond to pressing national problems in service of a tendentious and badly one-sided account of Founding Era views on federalism….
[p. 867] ...Only after the repeated electoral triumphs of Jeffersonian Republicanism beginning in 1800-1801 did enumerationism become entrenched as constitutional dogma. Since the New Deal revolution in 1937, our constitutional order has continued to pay lip service to enumerationism, while making every effort to work around it. Most often, we try to shoehorn regulatory problems into the Commerce Clause….
[p. 870 ...Moreover, limited enumerated powers is not even a second-best mode of enforcing federalism limits. It is at best a third- or fourth-best mode. The Framers themselves apparently believed that process limits on legislation—such as a two-house legislature and a presidential veto—were more effective than “parchment
barriers” in the form of specified limits. But if paper barriers were desirable, then a better way to protect reserved state powers would be to enumerate limitations, rather than powers—a point that the Framers apparently understood, for example, in enumerating limits on Congress’s powers in Article I, Section 9.42
[p. 880] ...The drafters of the 1861 Confederate Constitution reworked Clause 1 to obviate a general welfare interpretation: “To lay and collect taxes, duties, imposts,
and excises, for revenue necessary to pay the debts, provide for the common defence, and carry on the government of the Confederate States.”….
[pp. 887-888] The enumeration in Article I, Section 8, originated with the Committee
of Detail draft, reported to the full Constitutional Convention on August 6, 1787. The Committee’s charge was to write up the numerous resolutions approved by the Convention in the form of a draft constitution… The resolution conforms to one of the primary purposes of calling the Constitutional Convention in the first place: to add legislative powers to what the Confederation Congress possessed.130 The Articles of Confederation had conferred several nontrivial powers on the Union, including powers to declare war, conduct certain foreign affairs functions, “appoint maritime and prize courts, coin money, fix the standards of weights and measures, regulate commerce and relations with Indian tribes, “establish[ ]” or “regulat[e ]” post offices, and incur debt. Passing these on to the new national government
was uncontroversial, and was approved unanimously. The “legislate in all cases” language following the semicolon was somewhat more controversial, but was nevertheless approved on July 17 by a solid 8-2 vote of the state delegations present…. The conventional view that the enumeration is exhaustive requires explaining away the Resolution 6 instruction to authorize Congress to legislate “in all cases for the general interests of the Union”….
Until they were shocked by the December 2021 decision Dobbs v. Jackson Women’s Health Organization which swept away Roe v. Wade, liberals and leaders of the Democratic Party have been crippled by a large part of “the left” rejecting out of hand USA Constitutional law and political history as mere instruments of an oppressive and exploitative capitalist system tainted irremediably by slavery. Liberals, Democrats and “the left” ignored the historical record of the fight within USA between republicanism and oligarchy. They mistakenly believed liberalism was a derivative of civic republicanism instead of seeing how much of liberalism — with its emphasis on “private property” and “individual liberty” — was shaped as an oligarchical response to civic republicanism and the rise of the American republic. Thus they were disastrously outflanked by the Rehnquist / Scalia / Thomas assault on the law and persistent undermining of the principles of civic republicanism.
In "Reconsidering the Constitution’s Preamble: The Words that Made Us U.S. — University of Wisconsin Legal Studies Research Paper Series Paper No. 1718," David S. Schwartz, explains that conservatives and originalists dismiss the Preamble to the U.S. Constitution as a “stylistic flourish with no operative legal significance.” But, “the drafting history of the Preamble, observable by comparing the preambles in the Articles of Confederation, the Committee of Detail draft of the Constitution, and the Committee of Style’s final version, demonstrate that the Framers considered the Preamble to be substantively meaningful…. concluding that the Preamble is “a legally inoperative flourish has no basis as a matter of text or history.”
In his 1833 three-volume Commentaries on the Constitution of the United States — long considered the most through and faithful exposition of Constitutional interpretation — Justice Joseph Story wrote that while the Preamble does not confer any “substantive power” on the national government, it does “expound the nature, and extent, and application of the powers actually conferred by the
constitution,” and should be used as a guide to interpreting the Constitution when “the terms of a given power admit of two constructions, the one more restrictive, the other more liberal.” Further, interpretation should be “governed by the intent of the power;” that is, Constitutional interpretation of federal powers should “promote” and not restrict — Story uses the word “defeat”” — that power. Schwartz writes,
“For Story, then, the preamble is an argument against strict construction of federal powers: a statement that the Constitution’s grants of powers are to be liberally construed, to promote such things as “the general welfare.”
This is, of course, the exact opposite of the doctrines of conservatives and originalists such as William Rehnquist, Antonin Scalia, Clarence Thomas, and Samuel Alito, not to mention the entire (anti)Federalist Society. Schwartz makes the important point that “The argument that the preamble meant nothing more than a stylistic flourish … was highly congenial to compact theorists, nullifiers, and secessionists.”
We have seen this throughout American history: the “domestic enemies” of the Constitution have tried repeatedly to have the Constitution reinterpreted in ways that limit and even abrogate the powers of the national government. Today, the “domestic enemies” of the Constitution want to dismantle “the administrative state” and allow “free enterprise” and “private property” free reign to foul our environment, alter our climate, exploit our labor, limit our economic prospects, mute our political participation, and surveil our lives.
Schwartz ends by noting that at the time of ratification, the Anti-Federalists fully understood that the grand objectives proclaimed in the Preamble meant that the federal government was not at all strictly limited in its powers, but pointed to an expansive realm of implied powers, as Treasury Secretary Alexander Hamilton would argue in his February 1791 report to President Washington in favor of establishing a national bank.
Schwartz writes, "The Framers felt they had to clarify that the new government was a truly national government, and moreover, one based on republican principles—that is, authorized by the sovereign people, not by a grand interstate compact.
"Significantly, nothing in the Preamble makes “limited enumerated powers” an object, or—pace Madison—an essential characteristic of the national government. The preamble does not list “federalism,” or “state sovereignty” or “balancing national powers with the rights of the states” among its great objects. [p. 10] ….
"Federalists and Anti-Federalists during the ratification debates and early republic both understood the Preamble “as reinforcing a theory of sovereignty and national union that expanded the scope of national power, beyond either those powers that were enumerated or those powers that might be aggregated from that enumeration.” This nationalist reading, channeling the constitutional vision most acutely expressed by James Wilson, was thus a prominent reading—although so read with horror by Anti-Federalists—as Federalists in the early post-ratification years argued that the Preamble was indeed a legitimate source of implied powers. "[pp. 11-12]