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General Welfare Clause: an Exploration of Original Intent and Constitutional Limits Pertaining to the Rapidly Expanding Federal Budget

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General Welfare Clause: an Exploration of Original Intent and Constitutional Limits Pertaining to the Rapidly Expanding Federal Budget THE GENERAL WELFARE CLAUSE: AN EXPLORATION OF ORIGINAL INTENT AND CONSTITUTIONAL LIMITS PERTAINING TO THE RAPIDLY EXPANDING FEDERAL BUDGET 1 ' STEVEN T. VOIGT 2 The United States Constitution created a federal government with limited, enumerated powers and powers implicitly necessary to those specifically enumerated. In the founding era, the President, Congress, the courts, and the states scrutinized the taxing and spend- ing of Congress against the proper scope of authority granted by the Constitution. In the founding era, and indeed in any other age of our republic, the modern day's bloated budget would have been thrown out of Congress by the very body of Congressmen assembled. The budget would have been rejected by the watchful gaze of a judiciary standing guard over the Constitution. The states would have opposed it. Our President would have vetoed it. The checks and balances of our nation would have worked. May we begin to remember, before it is too late, the warnings from our past - by the founding fathers, by early leaders, and by the courts that studied the intent behind the Constitution's provisions - that the federal government is indeed lim- ited in its authority. If today's federal government actually tried to justify the federal budget under the Constitution, the argument could not be based on the enumerated powers of the Constitution because the scope of fed- eral spending reaches far beyond those enumerated powers. The ar- gument would likely be based, in part, on a misapplication of the General Welfare Clause of Section 8 of Article I. The pertinent portion of Article I Section 8 of the Constitution states, "The Congress shall have 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 .... -"3 Perhaps today's bureaucrat would protest, "This provision of the Constitution includes the specific words, 'gen- eral welfare.' That must mean we can spend money on all the local 1. Steven T. Voigt, Esquire is a lawyer with a practice based in Pennsylvania. The opinions in this article belong to the author and do not necessarily represent the opinions of other lawyers at the author's law firm. 2. The author wishes to thank his wife, Amy Voigt, and his friend, Kendall Hew- itt, for their insight and feedback. 3. U.S. CONST. art. I, §8. CREIGHTON LAW REVIEW [Vol. 43 pork projects that we want, as long as we say the projects are good for the people. The Representative down the hall tacks on his project to a bill and I will add mine. Enough taxpayer money exists to spread around to every pet project in Congress. We can, and in 2009 we did, allocate money for fourteen local bike path and trail projects, a mu- seum of natural history, a tattoo removal program, a water taxi ser- vice for a beach, and much, much more - 10,160 pork projects costing 4 taxpayers $19.6 billion, actually." Simply put, the bureaucrats of the beltway are wrong. The Gen- eral Welfare Clause is not an independent grant of power to Congress. It is not a grant of authority for Congress to pass social legislation. It is not a special grant to spend money on anything. Instead, the Gen- eral Welfare Clause places restrictionson the reasons for which taxes are levied and restrictions on how those taxes are designated. Unfortunately, modern-era courts have taken the position that all of Congress's spending is presumed constitutional. The courts have created a burden of near impossibility for proving that a power is not within the scope of the federal reach under the Constitution. As the United States District Court for the Western District Court of New York held in 1939, "What makes for general welfare is necessarily in the first instance a matter of legislative judgment" and "Congress has declared the purpose to be a public use, by implication if not by ex- press words .... Its decision is entitled to deference until it is shown 5 to involve an impossibility." This judicial presumption of expanded federal power is inconsis- tent with the founding fathers' intentions. Instead, the burden prop- erly belongs with lawmakers in Washington D.C. to prove to the American people why and how the government is constitutionally au- thorized to spend the money that hard-working, tax-paying citizens have earned. This judicial presumption in favor of expanded federal power also seems no longer justified in an age when massive spending bills are preceded by no analysis or consideration on the part of legis- lators for the proper constitutional limits of federal spending. In the current debate over a proposed national health care plan, for instance, almost none of the discussion and debate centers on whether the fed- eral government is permitted to manage, provide for, and even require citizens to obtain health care or whether the reform proposals prop- erly belong, if anywhere, before the general assemblies of the states. 4. See Citizen's Against Government Waste, a non-profit organization, http:// www.cagw.org/site/PageServer?pagename=reports-pigbook2009_Oinkers (last visited Aug. 9, 2009); Citizen's Against Government Waste, a non-profit organization, http:l/ www.cagw.org/site/PageServer?pagename=reports-pigbook2009) (last visited Aug. 9, 2009). 5. In re U.S., 28 F. Supp. 758, 762 (W.D.N.Y. 1939) (citations omitted). 2010] THE GENERAL WELFARE CLAUSE This Article explores the founding fathers' intent for the General Welfare Clause, judicial application of the clause, and the federal gov- ernment's divergence from original intent. The General Welfare Clause, which is one of the modern-era justifications for federal ex- cess, was never intended as a broad grant of authority. The original intent for the clause is a pole apart from the manner in which the clause is used today, which is as a justification for unlimited taxing and spending. A. THE FOUNDING FATHERS' EXPRESSED INTENT REGARDING THE GENERAL WELFARE CLAUSE The founding fathers agreed that the General Welfare Clause is a limitation on the preceding taxation clause and not its own indepen- dent grant of power. In the first draft of the Constitution, the provi- sion related to taxation read, "The legislature of the United States shall have power to lay and collect taxes, duties, imposts, and ex- cises." 6 The clause related to general welfare was not present. If this additional clause is not a limitation on the taxing provision and in- stead is its own grant of power, then the preceding taxing provision is left meaningless. Thomas Jefferson stated, "To consider the latter phrase not as describing the purpose of the first, but as giving a dis- tinct and independent power to do any act they please, which might be for the good of the union, would render all the preceding and subse- quent enumerations of the power completely useless."7 Jefferson wrote that the consequence of such an unintended meaning would carry with it great peril, stating that this misinterpretation "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; and, as they would be the sole judges of the good or 8 evil, it would also be a power to do whatever evil they pleased." Nonetheless, even understood as a limitation on the taxing power, differences existed about the breadth of this limitation. Both prior to the ratification of the Constitution and afterward, 9 James Madison stated that the purpose of the General Welfare Clause is to limit 6. The Honorable Orie L. Phillips, ConstitutionalLimitations on Social Legisla- tion, 436 n.4, found in Proceedings of the Academy of PoliticalScience, Vol. 16, No. 4, The Constitution and Social Progress(Jan. 1936). 7. Id. at 438. 8. Id. 9. The United States Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and thereafter ratified by each state. By May 29, 1790, all 13 states, Delaware, Pennsylvania, New Jersey, Geor- gia, Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire, Virginia, New York, North Carolina, and Rhode Island, had ratified it. The Constitution was made effective after the ninth state, New Hampshire, ratified it on June 21, 1788. CREIGHTON LAW REVIEW [Vol. 43 spending to only the powers specifically enumerated in the Constitu- tion. "To understand" the General Welfare Clause "in any sense," James Madison explained to Congress in 1791, and not "limited and explained by the particular enumeration subjoined," would "give to Congress an unlimited power." 10 If Congress could tax and spend for whatever purpose it desired, Madison argued, this "would render nu- gatory the enumeration of particular powers" and it "would supercede all the powers reserved to the state governments . ."11 Again in 1830, in a letter to Andrew Stevenson, Madison penned that the fram- ers never "understood [the General Welfare Clause to] invest Con- gress with powers not otherwise bestowed by the constitutional 12 charter." On January 19, 1788, prior to ratification of the Constitution, Madison authored The Federalist No. 41 to advocate for ratification. In The FederalistNo. 41, Madison stated that the General Welfare Clause refers only to other enumerated powers. He wrote, in part: Some, who have not denied the necessity of the power of taxa- tion, have grounded a very fierce attack against the Constitu- tion, on the language in which it is defined. 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.
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