While debating the repeal of Obamacare earlier this year, I would often ask others, “Which part of the Constitution authorizes a federal government role regarding health care. I would seldom get an answer. However, when I did, it was usually “The Preamble says the federal government is supposed to promote the general welfare.”
That answer seems to be a common one among those who support an expanded federal government role regarding health care. For example, during the debate on Obamacare in 2009, Denise Dennis, a blogger for the Huffington Post, wrote, “To those who believe the Constitution does not include health care reform, I suggest that they re-read the preamble to the Constitution, which says that in order to form a more perfect union we must, ‘…insure domestic tranquility, provide for the common defense,’ and ‘promote the general welfare…'”
During an August 2009 town hall meeting on healthcare reform, an audience member asked Rep. Hank Johnson (D-Ga.) where the Constitution gives Congress the power to enact Obamacare. “The preamble of the United State Constitution talks about the welfare of the people,” he answered. “Promote the general welfare is the term.”
“Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end,” then House Majority Leader Steny Hoyer (D-Md.) said in 2009. “The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.”
If Dennis, Johnson, and Hoyer had read the Constitution beyond the preamble, they could have made an even stronger case by citing the first line of Article I, Section 8: “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.” After all, “provide” means “Equip or supply someone with (something useful or necessary),” while “promote” means “Support or actively encourage (a cause, venture, etc.); further the progress of.” Supplying something certainly requires more action than merely encouraging something.
However, as I note in my book, The Tea Party Challenge: Understanding the Threat Posed by the Socialist Coalition, Dennis, Johnson and Hoyer are all—either through ignorance or subterfuge—misinterpreting the word “welfare” as it is used in the Constitution. Webster’s Dictionary in 1828 offered two definitions for the word “welfare“:
1. Exemption from misfortune, sickness, calamity or evil; the enjoyment of health and the common blessings of life; prosperity; happiness; applied to persons.
2. Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government; applied to states.
The words of the Founders make it clear that, by “welfare,” they meant the second definition, i.e., “applied to states.” According to Article III of the Articles of Confederation, “The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.” Note the similarities between the words used in Article I, Section 8 of the Constitution and Article III of the Articles of Confederation. In fact, in a January 21, 1792 letter to Edmund Pendleton, James Madison, considered the father of the Constitution, noted that the general welfare clause in Article I, Section 8 of the Constitution was copied from Article III of the Articles of Confederation. In that same letter, Madison wrote, “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”
The enumerated powers of Congress are listed in Article I, Section 8 of the Constitution. Note that nothing resembling Social Security, Medicare, Medicaid, food stamps, farm subsidies, No Child Left Behind, or Obamacare can be found amongst those powers. There is also nothing in there about the federal government spending money on roads (with the exclusion of “post roads”) and bridges. In fact, the Constitutional Convention rejected an explicit attempt to authorize spending by the federal government for internal improvements. As president, Madison vetoed a bill that authorized funding “for constructing roads and canals, and improving the navigation of water courses”:
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
In a June 16, 1817 letter to Albert Gallatin, former President Thomas Jefferson expressed his support for Madison’s veto:
You will have learned that an act for internal improvement, after passing both Houses, was negatived by the President. The act was founded, avowedly, on the principle that the phrase in the Constitution which authorizes Congress “to lay taxes, to pay the debts and provide for the general welfare,” was an extension of the powers specifically enumerated to whatever would promote the general welfare; and this, you know, was the federal doctrine. Whereas, our tenet ever was, and, indeed, it is almost the only landmark which now divides the federalists from the republicans, that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money. I think the passage and rejection of this bill a fortunate incident.
In 1887, President Grover Cleveland, a Democrat, vetoed a congressional appropriation of $10,000 to buy seed grain for drought stricken Texans. “I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit,” Cleveland wrote in his veto message. “A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people.”
In 2007, George W. Bush, who, unfortunately, was no devotee to the Madisonian interpretation of the general welfare clause, did veto a $23 billion water resources bill that he said was filled with unnecessary projects. However, he suffered his first veto override. The House voted 361-54 to override the veto, while the Senate vote to override the veto was 79-14. Needless to say, many members of Bush’s own party voted to override the veto. Sen. Tom Coburn of Oklahoma was an exception. While appearing as a guest on MSNBC’s Morning Joe in August 2012, Coburn, who did not request a single earmark while serving in the Senate, had the following exchange with Washington Post editorialist Jonathan Capehart:
CAPEHART: Senator Coburn, it’s Jonathan Capehart. I want to bring you back to something you said when you first came on. You were talking about people in the Tea Party who are fed up with Washington and for the abandonment of the Constitution. Could you please tell me how and when did we abandon the Constitution?
COBURN: Yeah, I can. Go read Article 1, Section 8, and it gives the enumerated powers, and what you’re seeing happen, and this has been a progressive thing, the courts have abandoned the Constitution by not holding the Congress accountable to stay within Article 1, Section 8 of the Constitution.
CAPEHART: I’m sorry, Congressman, um, Senator, Article 1, Section 8? I should know this, but I don’t.
COBURN: It’s the enumerated powers. It’s what the Founders gave us as the authority within which we can work.
Capehart attended an elite preparatory school, graduated from one of the best liberal arts college in the United States, writes editorials for a major newspaper, and received a Pulitzer Prize in 1999. Of course, he should know about Article I, Section 8 of the Constitution. Unfortunately, most in his profession don’t know about it and, with the exception of Coburn and a few others, members of Congress simply ignore it.
Would a strict and proper interpretation of Article I, Section 8 mean that no government can spend taxpayers’ dollars on bridges, roads, and social welfare programs? No. According to the 10th Amendment of the Constitution, “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 means that a state such as Massachusetts could enact Romneycare, on which statists claim Obamacare was based, while other states would be free to go in other directions. As U.S. Supreme Court Associate Justice Louis D. Brandeis wrote in 1932, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
What about programs and projects that would involve several states, such as the interstate highway system? If the federal government had adhered to Article I, Section 8 and the 10th Amendment, would we be without an interstate highway system today? Absolutely not. In fact, the Eisenhower administration proposed financing the interstate highway system through a federal bond issue, and expected state and local governments to contribute 70 percent of the cost. Congress, led by Democrats Albert Gore, Sr in the Senate and Hale Boggs in the House, rejected that proposal and instead established a federal fuel tax to fund highway construction and maintenance. In August 2017, President Donald Trump said he was open to increasing that tax and using the new revenue to pay for his infrastructure package.
It is important to remember that the federal government was a creation of the states and, under federalism, the states were to retain, in the words of Madison in Federalist 45, “a very extensive portion of active sovereignty.” Further:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The State governments were the ones that were supposed to have indefinite powers. However, after decades of misinterpreting and abusing the general welfare clause, the statists—both Democrat and Republican—have pulled off the ultimate switcheroo. We now have a federal government that is, as Madison warned, “no longer a limited one, possessing enumerated powers, but an indefinite one.”
Kevin Groenhagen is the author of The Tea Party Challenge: Understanding the Threat Posed by the Socialist Coalition.
One thing you learn if you take and American politics class on the Constitution is that the preamble is an introduction (duh) and not really a law-containing portion of the Constitution. Referring to the preamble in the same way a lawyer would refer to the First Amendment, for example, doesn’t really make sense.
How are we poor little helpless snowflakes supposed to survive in the mean old states where welfare is not freeflowing? There are meanies out there. It not fair!!!! WAAAAAAAHHHHHH!
(Providing the typical cradle-to-grave believer response. I would note that today we’d all be living in England under Muslim rule if pioneers had thought the way modern Americans do, so this discussion would not be happening. The regressive, childish nature of Americans and the weakness and lack of thought made this possible.)
In discussing Congressional overreach relative to the Affordable Care Act one should also keep in mind the SCOTUS case that makes it possible: Wickard v. Filburn. The precedent that case set is working in harmony with Congress’ legislative overreach via abuse of the Gen’l Welfare Clause of the Constitution.
There, the U.S. Supreme Court decided that the Constitutional authority to regulate commerce BETWEEN states included the authority to regulate a farmer’s growth of feed, for his own livestock use, within a state because by growing his own feed he wasn’t buying on the market, and that inaction therefore affected interstate commerce. Most of us see that as a blatant case of judicial activism/overreach.
Here’s the gist, from Wikipedia:
“An Ohio farmer, Roscoe Filburn, was growing wheat to feed animals on his own farm. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to stabilize wheat prices and supplies. In 1941 Filburn grew more than the limits permitted and he was ordered to pay a penalty of $117.11. He claimed his wheat was not sold in interstate commerce and so the penalty could not apply to him. The Supreme Court stated “The intended disposition of the crop here involved has not been expressly stated” and later “Whether the subject of the regulation in question was ‘production’, ‘consumption’, or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us … [b]ut even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect’.”[4]
“The Supreme Court interpreted the United States Constitution’s Commerce Clause under Article 1 Section 8, which permits the United States Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Court decided that Filburn’s wheat growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally (interstate), and is therefore within the purview of the Commerce Clause.”
Get Wickard v. Filburn reversed and the Affordable Health Care Act (and much else) becomes unconstitutional in the same moment.
Getting Wickard v. Filburn reversed would, in a stroke, impart the single greatest reversal to the socialist movement in the U.S. that’s been making headway for nearly a century so far…
In relatively recent decision(s) the SCOTUS, or some justices there, have noted that overturning even an unconstitutional law having broad effect might be so disruptive that maintaining the unconstitutional status quo might be preferable. Finding that case/quote is worthwhile as it brilliantly illustrates a case-specific example of judicial activism (the specific case I vaguely recall eludes me at the moment; it’s possible that viewpoint was in the minority).
Great article. We need more reminders of our actual historical origins if we hope to effectively resist this march to the edge of the abyss. Memory is everything.
How did this happen, that is Willard vs. Filburn? Reading in a word not present. What is that word? Affect. If the Founders and Framers wanted it read that way, they would have included that word, affect. Why didn’t they? Because affect would have made the limitations of Article I, Section 8 null. How do we know this? Look at what happened afterwards. Also note that changing the Senate from representatives of States into just another run-of-the-mill congressman, helped make this possible.
The late Mario Cuomo briefly had a national talk radio show. He said (in effect) “Government needs to assure that all Americans get what they need.” That’s the way these politicians think. Of course the government doesn’t have a warehouse full of stuff Americans need and the only way they have to get stuff for one person is to take the stuff from another person.
C’mon now does anyone really think a constitution, any constitution, is an absolute document. For every Madison and Jefferson there is a Washington and Hamilton. Read them. There is a space between the words. Put there by even the most absolutist writer because these documents are a compromise in their bones. They must be in order to be written in the first place.
Do you think that when King John was made to sign Magna Carta anyone there thought it would lead to a Parliament which answered to the people in toto? Or that the monarch would be limited not just by the barons but some drunk bastard in a pub? Every noble would have had a collective stroke!
At least when King Canute ordered the tide to go back he had the sense not to be surprised when he got his feet wet.
I would note that neither Washington nor Hamilton is known as the “Father of the Constitution.” Madison is.
So noted. However Madison began as a strong proponent of centralized government before joining Jefferson to champion states rights. He joined Hamilton to draft op-eds to convince New York to ratify the constitution ( and Hamilton was about as convinced a centralist as it is possible to imagine). In later years Madison became a middle ground moderate which he felt was the only workable solution. Which is my point. The day either the political left or right convinces (us?) that they are entirely correct is the day the constitution dies. Having said all that I agree judges are getting beyond themselves.
I suppose by now, almost everyone with an honest view, and that includes people of both left and right, have noticed that the general trend of constitution interpretations is much more to increase the power of the state rather than to assert the rights of individuals. Of course there are a few (very few) exceptions, such as Miranda warnings but the trend is clear and it is full on toward statism. The thousands of pages of added federal regulations each year attest to that. It is a difficult argument to make that we are better off for it.