Sunday, July 19, 2009

The meaning of "General Welfare"

Have you ever sat back and wondered if the Congress of the United States really has the Constitutional power to appropriate the billions of dollars it does for hundreds of thousands of programs that aren't even necessary for the function of government or the "general welfare" of this country?

On the surface it seems they would especially based on Article I, Section 8 which states, "The Congress shall have 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; but all Duties, Imposts and Excises shall be uniform throughou the United States."

I've been reading a 2003 journal article written by Robert Natelson, published in the Kansas Law Review titled "The General Welfare Clause and the Public Trust: An Essay in Original Understanding" and among many things, he discusses three leading interpretations of the General Welfare Clause.

These interpretations are 1) Plenary view (meaning full, complete, entire, absolute) under which the interpretation means the Congress has the exclusive power to "regulate and spend for the common defense of the general welfare" ; 2) the Hamilton-Story view in which the "General Welfare Clause does not grant authority to regulate but does grant authority to appropriate and spend". In other words, the authority to spend is separate from Article I, Section 8 and not limited by it. Hamilton-Story argue that any limitation directs that "money must be used to pay national debts or fund programs that serve "the common Defence" or the "general welfare" ratherh than some local or special welfare"; and 3) Madisonian View which maintains that "the General Welfare Clause meant that tax money could be spent only pursuant to the other enumerated powers."

Professor Natelson gives a very good textual analysis of all three of the above views, a history of the clause, etc. It's a very good article. I'm still in the midst of reading it and the more I read, the more I am convinced that the Congress has taken the meaning of the phrase "common Defence and general Welfare" out of context. It's unlikely in this day and age that the issue would make its way back to the SCOTUS because there'd be a huge government fight against it. There's precedence. But still, I'd like to see some ambitious and intelligent attorney out there sacrifice everything to get this case heard. I think it would be a hell of a Constitutional argument. Can you imagine the repercussions if the Court held that it was in fact, unconstitutional?


I'll give more of my own personal opinion of this once I finish reading it.

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