The General Welfare Clause: A Legal Perspective
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, secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The General Welfare Clause, not to be mistaken for the Preamble featured above (Fun Fact: It was written by Gouverneur Morris), is subject to some considerable debate. It has led groups like the CATO Institute to the conclusion that the Department of Education is Unconstitutional. This reasoning stems from the fact that this clause is listed among the enumerated powers but was itself not an explicitly defined power. The clause, shown below in bold, reads:
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 throughout the United States;
The debate here is between the explicit definition given to the enumerated powers, which in this case is the power to levy taxes, and the implicit nature of the spending power. To better understand this, we should consider the more restrictive view, which rejects the implicit spending power. This view is supported by James Madison in The Federalist Papers, issue 41:
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. . . Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”
This view would hold that there is no implicit power to spend for general welfare, but that taxes may be levied to provide for general welfare. In other words, that the General Welfare Clause is a qualifier for collecting taxes and not an implicit power to spend. It is curious to consider how this might reasonably function given that the Supreme Court ruling (Bailey v. Drexel — 1924) that held this narrow view rejected a tax that would curb child labor in the name of promoting general welfare. If a tax to promote general welfare can’t be levied and money can’t be spent on general welfare, then what should one reasonably conclude of such a viewpoint if not that it is wholly inadequate?
Regardless of the answer to that question, the implicit power to spend-especially with regards to general welfare (i.e. Social Security)-has largely been upheld in Supreme Court rulings:
In United States v. Butler (1936), the court rejected the Madisonian view and held, “The power to tax and spend is a separate and distinct power; its exercise is not confined to the fields committed to Congress by the other enumerated grants of power, but it is limited by the requirement that it shall be exercised to provide for the general welfare of the United States.” Note that this was the view supported by Alexander Hamilton.
In Helvering v. Davis (1937), the court held that Congress may spend money in aid of the general welfare.
In South Dakota v. Dole (1987), the court held, “Congress has the power to spend for the general welfare. . .”
The Constitutionality of general welfare spending has been resolved with great clarity by the Supreme Court. This resolution helps explain why legislation, such as that put forth in The Department of Education Organizational Act, is couched in terms of general welfare. More importantly, it demonstrates that to power to craft such legislation is derived from the Constitution.
