General Welfare Clause

• Author: Sotirios A. Barber
• Pages: 1186-1187

Page 1186

With no enforceable power to tax under the ARTICLES OF CONFEDERATION, Congress "requisitioned" funds from the states each of which then decided how and whether to raise its share of the confederation's needs. Uneven responses brought resentment among the states and frequent frustration of congressional policies. Dissatisfaction with this system was a leading cause of the failure of the Articles. As a remedy, the CONSTITUTIONAL CONVENTION proposed to empower the new Congress to "lay and collect Taxes, Duties, IMPOSTS, and EXCISES, to pay the Debt and provide for the common Defense and general welfare of the United States." Some ANTI-FEDERALISTS said this language defeated the principle of ENUMERATED POWERS because it could be read to authorize action for the common defense and general welfare by any legislative means whatever. JAMES MADISON disclaimed this interpretation in THE FEDERALIST #41, saying that the general welfare clause conferred power to tax and spend only for purposes indicated by the enumerated powers that followed in Article I, section 8. Congress could tax and spend for armies and navies, for example, but not for purposes reserved to the states.

Later, during conflicts with the Jeffersonians over national economic policy, ALEXANDER HAMILTON argued that the enumerated powers did not exhaust the concept of "the general welfare" and that Congress could tax and spend for purposes beyond the enumerated powers, so long as it acted in the general interest. Constitutional history has thus produced three theories of the general welfare clause: as the Anti-Federalists charged, that Congress could claim unrestricted power to act in the general interest; that Congress could tax and spend only for purposes indicated by the enumerated powers, as Madison claimed; and that Congress could tax and spend for purposes beyond the enumerated powers, as Hamilton claimed. In OBITER DICTUM, the Supreme Court adopted the Hamiltonian theory in UNITED STATES V. BUTLER (1936).

In Butler, the court voided a federal tax as part of an unconstitutional scheme to use the spending power to invade powers reserved to the states. After first declaring that Congress could tax and spend for purposes beyond the enumerated powers, the Court then ignored the Hamiltonian theory by holding the act unconstitutional as an attempt to invade an area (agricultural production) beyond Congress's enumerated powers. Later decisions that were...