RECOVERING THE LOST GENERAL WELFARE CLAUSE.

• Author: Schwartz, David S.

INTRODUCTION

Does the Constitution empower Congress to issue a nationwide mask mandate in response to the COVID-19 pandemic? To require individuals to take steps to prevent further environmental degradation? To redress a nationwide pattern of violence against women? The answers to these questions are "no" or "probably not," according to the questionable ideology of "enumerationism"--the idea that the Constitution confers only limited enumerated powers on the national government and thereby denies the power to address all national problems. (1) Yet these important disputes about the delegated powers of Congress would not even arise under an arguably correct reading of the General Welfare Clause of Article I, Section 8, Clause 1 (Clause 1): "to... provide for the common Defence and general Welfare." (2) Such a reading--which I refer to as the "general welfare interpretation" of the General Welfare Clause--would authorize the federal government to legislate on all national problems. This interpretation is hardly far-fetched. According to James Madison, interpreting the General Welfare Clause to "convey the comprehensive power" to legislate on all national matters gives those words the meaning "which taken literally they express." (3)

Nevertheless, the settled interpretation departs from this literal meaning of the text. Clause 1 as a whole provides as follows, with the General Welfare Clause italicized:

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. (4) Conventional doctrine maintains that Clause 1 enumerates the taxing and spending powers, and that the words "to... provide for the common Defence and general Welfare" constitute the "Spending Clause"--conferring a power to spend, but not to regulate, for national purposes. (5) Yet "provide for" is not the most natural way to express the idea of spending; the more obvious interpretation of that phrase is to "legislate" or "regulate," which is how "provide for" is used elsewhere in the Constitution. (6) Moreover, the most closely applicable canons of construction favor the general welfare interpretation. Nevertheless, the linguistically strained "spending power" interpretation is presumed to be textually correct, whereas the general welfare interpretation--despite being a more natural reading--is viewed as "manifestly erroneous." (7)

This Article argues that the text and drafting history of the General Welfare Clause favor the general welfare interpretation. The prevailing view, that the narrow spending power interpretation is textually mandated, is wrong. On the contrary, the literal words and applicable canons of construction favor the general welfare interpretation over narrower ones. Further, the drafting history of Clause 1 demonstrates that the Framers intended to favor the general welfare interpretation, albeit by adopting strategically ambiguous language that also left space for a narrower interpretation.

This argument casts doubt on enumerationism itself. The general welfare interpretation of the General Welfare Clause truly is incompatible with the doctrine of limited enumerated powers. That doctrine has long and widely been held to be an inexorable textual command. (8) By showing that the text and drafting history of the General Welfare Clause favor the general welfare interpretation, I do not claim to refute enumerationism. But I do claim to undermine the contention that enumerationism is compelled by the Constitution's text or the intentions of its Framers. As we will see, the assumption of limited enumerated powers does all the analytical work that underlies the longstanding rejection of the general welfare interpretation. Whether normatively justified or not, it is our ideological commitment to enumerationism that makes the general welfare interpretation seem outlandish.

The interpretive stakes of this argument are to clarify and expand the newly reopened Founding Era debate about whether the Constitution is best read as granting limited enumerated powers to the federal government, or instead as empowering it to address all national problems. If, as I contend, the text and Framers' intentions favor the anti-enumerationist, general welfare interpretation of the General Welfare Clause, then enumerationism can no longer rest on textual and intent-based arguments. It must instead rely on nonoriginalist arguments from history, precedent, or the Constitution's "spirit" to compete with a general welfare theory of federal powers.

I believe that the general welfare interpretation is not only textually and historically plausible; it is normatively superior. A fully presented normative case for the general welfare interpretation requires addressing various normative arguments of different modalities. But what most of these interpretive modalities have in common is their belief that the Framers' intent is highly probative, if not dispositive, in interpreting constitutional text. This is true even of the interpretive theory that purports to mount the most damning critique of interpretations that rely on Framers' intent: "original public meaning" originalism. Accordingly, any normative argument for the general welfare interpretation stumbles out of the gate unless it can counter the predictable objection that of course the general welfare interpretation is foreclosed because the Framers intended to confer limited enumerated powers, and not general ones--not even general powers limited to national rather than local problems. This Article meets and rebuts that threshold objection, thereby taking the first large step toward a normative theory, by showing that the text and drafting history of the General Welfare Clause support the general welfare interpretation.

In Part I, I expand on the interpretive stakes of my argument by describing the cost of enumeration. That doctrine requires that we tolerate constitutional prohibitions on the federal government's authority to address at least some national problems--a unified and comprehensive pandemic response being a salient example. I then explain how the drafting history of ambiguous constitutional text is a highly relevant consideration in any mainstream approach to constitutional interpretation, including "original public meaning" originalism.

In Part II, I focus on the text of Clause 1. Although that clause can be parsed in four different ways, none of those achieves a compelling victory over the general welfare interpretation of the General Welfare Clause--whether construing the literal language of Clause 1 or applying interpretive canons to vary the prima facie language. It is only our confirmation bias, the tendency to interpret evidence to confirm existing beliefs, that prevents us from seeing the plausibility of the general welfare interpretation. That confirmation bias stems from the entrenchment of enumerationism.

In Part III, I detail the drafting history of the General Welfare Clause within Clause 1. Although this drafting history has been hiding in plain sight ever since publication of Madison's Convention notes in 1840, (9) it has been completely overlooked by historians and constitutional scholars. This may be due in large part to Madison himself, who "loathed" the General Welfare Clause and was largely successful in his lifelong effort to sweep it under the rug. (10) The General Welfare Clause first appeared as a proposal in the Committee of Detail's lesser-known second report presented two weeks after its famous first report of August 6, 1787, which produced the first draft of the Constitution. (11) In that second report on August 22,1787, the Committee proposed a General Welfare Clause that unambiguously authorized Congress to legislate for "the... general interests and welfare of the United States." (12) It was to be located at the end of the Necessary and Proper Clause--a placement that would have left little doubt that it was intended as a broad grant of legislative power. (13) Over the next two weeks, that language was ambiguated and relocated to its final placement, at the end of Article I, Section 8, Clause 1. (14)

In Part IV, I analyze the drafting history to draw inferences explaining the Framers' intentions behind Clause 1. This history strongly suggests a compromise between a nationalist, impliedpowers bloc and a state-centered, limited-enumerated-powers bloc at the Convention. (15) The "enumerationists," as I call them, successfully bargained for strategically ambiguous language in the final version, language that made interpretive space for a narrow reading of Clause l. (1) Despite the ambiguity, however, the nationalists were successful in retaining language whose most plausible, literal interpretation authorized the national government to legislate on all national problems. The "spending power" interpretation that prevails today has no basis in the Framers' intentions, but rather emerges from post-ratification developments. I conclude by dispensing with some of the weak style-based arguments that present-day scholars rely on to dismiss the plausibility of the general welfare interpretation. As with other textual arguments, it is only our confirmation bias that makes these extremely thin arguments seem dispositive.

Today, we face pressing nationwide problems that fall outside the conventionally understood limited enumerated powers--such as environmental degradation, national healthcare, and the COVID-19 pandemic. At the same time, a conservative and purportedly originalist Supreme Court is poised to greatly constrict federal power to respond to these problems, in service of a tendentious and badly one-sided account of Founding Era views on federal legislative power. The stakes of this interpretive question may be higher than ever.

1. THE INTERPRETIVE STAKES

   Contrary...