For far too long, Congress has been violating the Constitution by passing legislation that gives them powers that were never authorized by the Constitution. In every case, those powers represent rights that were intended to be reserved to the states and to the people.
How has Congress committed these grievous violations and gotten away with it? By claiming that "to provide for the common defense and general welfare" is an enumerated power granted to Congress under Article 1, Section 8 of the Constitution. It is not. It is a general statement describing the section content and justifying the need to levy taxes.
"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; but all duties, imposts and excises shall be uniform throughout the United States;"
If "[to] provide for the general welfare" were intended to be an enumerated power, just that one statement alone would render the rest of the article unnecessary. It would allow Congress to do whatever it wanted, so long as it could be explained as being for the general welfare of the country. The framers’ intent in writing the Constitution was to limit the power of government, not to grant it unlimited power.
The belief by some - that providing for the general welfare is an enumerated power - goes against everything the framers of the Constitution intended. It would completely undermine the foundation of limited government and the intent of the framers to retain as much power as possible to the states and to the people.
The framers knew the dangers of concentrating too much power in a big, central government and so they made that clear with the adoption of the 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This amendment specifically states that all powers not specifically granted to the federal government shall be reserved to the states and to the people. There are no such restrictions on the states. The states are free to make laws and spend their state taxpayers’ money any way they choose within their respective constitutions, providing they do not violate laws already defined by the U.S. Constitution.
This is why such things as health, welfare and education were historically regulated and financed by the states and local governments, until recently. There is no mandate in the U.S. Constitution to provide for federal tax money to be spent on health, welfare and education. There is also no mandate in the Constitution for federal tax money to be given to companies engaged in alternative energy development, or given to anyone else including gifts as foreign aid.
Article 1, Section 8 describes the things that Congress is authorized to spend tax money on. The government cannot operate without tax money, so the framers listed, item by item, those things that Congress is empowered to use tax money for.
If [to provide for] "the general welfare" were an enumerated power, then so would be "to provide for the common defense." If this clause were an enumerated power also, then that would be all that would be necessary for Congress to create and regulate an army, navy, and other divisions needed for the national defense.
Therefore, there would be no need to specify the powers to create and maintain armies and navies in the sentences that follow.
"To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;"
Why would the above items even have to be mentioned if "to provide for the common defense" in the first statement was an enumerated power? The powers to provide for "the common defense" are specified in the above 6 sentences.
Providing for "the general welfare" includes the following enumerated powers:
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations."
"The general welfare" and "the common defense" are general terms used in a preamble that refer to the itemized powers that follow them. They are not enumerated powers. The enumerated power in the first sentence is "taxation", ie: the power to lay and collect taxes, duties, imposts and excises [for the purpose of] providing for the common defense and general welfare of the United States.
Notice what follows the common defense and general welfare clause:
“but all duties, imposts and excises shall be uniform throughout the United States;"
It doesn’t say “but all duties, imposts and excises, common defense and general welfare, shall be uniform throughout the United States.” It refers specifically to the power of taxation at the beginning of the statement. Taxation is what this statement is all about. It is not about granting broad powers to Congress to do whatever they want as long as they call it “for the general welfare of the country.”
The final statement in Section 8 grants Congress the power to make laws necessary to enforce and execute the powers granted above.
"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
This means just what it says; that Congress is empowered to make laws necessary to execute the powers granted above, and all articles and amendments contained within the Constitution. Therefore, any law made by Congress should comply, and be justified by the articles specified in the Constitution. That is to say, that any law made by Congress must be necessary in order to comply with the enumerated powers assigned to them.
For Example; since Congress has the power to use tax money to build roads, it will then be necessary to also make laws to authorize the installation of road signs and traffic control on interstate highways. Or to operate a postal service it will be necessary to have laws to regulate that department.
You might be wondering how the government can do everything it has to do and meet the needs of the people with so few powers granted to Congress. The answer is it was never intended to do that. The Constitution leaves those powers to the states and grants the federal government only the powers necessary to deal with foreign and interstate affairs. The federal government has no constitutional authority to regulate domestic affairs that affect the free will, or the progress of society. It has no constitutional authority to interfere in the affairs of the people, except where explicitly enumerated in the Constitution.
The use of federal tax money is authorized by the Constitution to support federal government functions and nothing else! Without these constitutional limits on federal government, there would be no limit to tax increases on the citizens and federal regulation of every aspect of our lives - much as we are seeing today. There would be little or no use for individual states.
In Article 1, Section 9, we find this:
No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.
Congress is continually passing laws to spend money because of this requirement. But what we should be asking is - are those laws in compliance with Article 8? Are the expenditures authorized by one or more enumerations of power contained in the Constitution? Are they necessary to carry out government functions? If not, then they are unconstitutional and illegal, and Congress is guilty of abuse and misuse of taxpayers’ money.
Politicians today have found ways to tax everything we do and are still looking for more sources of tax money, to provide themselves with all the money they need to do whatever they want to do, without regard for the limitations placed on them by the Constitution. Isn't it time we take back our country from corrupt politicians who, for decades, have been stealing our freedom and liberties, and constitutional rights, to say nothing of our money? What we have today is not the limited government that the framers intended in the Constitution.
Corruption and disregard for the Constitution has become the status quo in Congress. It has become acceptable practice by most politicians, therefore they are rarely called on it by others. Politicians in Congress have gotten used to the idea that their job is to provide for the general welfare of the people by any means necessary.
By assuming that the general welfare clause is an enumeration of power, they have turned our federal government into exactly what the founders of the country and the framers of the Constitution tried to prevent when they crafted the document and in doing so, have stolen the rights and freedom of the individual states and those of the people. Only by electing those who show a willingness to restore the limits placed on government by the Constitution, can these injustices be corrected.
Colin and Connor Clark contributed to this article with my thanks.