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]
Thank you for your insightful comments and the elaborations on the history of the Preamble you cited.
The major factor driving the accelerating decline of the United States is that there is no political advocate at the federal level for the well being of "We the people." The establishments of the two parties are both beholden to a near union set of wealthy donors, which means their first and second priorities are money and power, which are inseparably intertwined. Both parties slavishly serve the Greed Class's interests, while distracting their faithful bases by screaming at each other about "relatively" secondary issues. It's not that these latter are unimportant - for more than a few people they're life and death issues.
The chances of either the Dems or the GOP of taking up something like the General Welfare Amendment are on the far side of slim but if, say, the Greens did so it would be something concrete to focus their agenda.
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]
Thank you for your insightful comments and the elaborations on the history of the Preamble you cited.
The major factor driving the accelerating decline of the United States is that there is no political advocate at the federal level for the well being of "We the people." The establishments of the two parties are both beholden to a near union set of wealthy donors, which means their first and second priorities are money and power, which are inseparably intertwined. Both parties slavishly serve the Greed Class's interests, while distracting their faithful bases by screaming at each other about "relatively" secondary issues. It's not that these latter are unimportant - for more than a few people they're life and death issues.
The chances of either the Dems or the GOP of taking up something like the General Welfare Amendment are on the far side of slim but if, say, the Greens did so it would be something concrete to focus their agenda.