General Welfare clause
Encyclopedia
A General Welfare clause is a section that appeared in many constitution
s, as well as in some charter
s and statute
s, which provides that the governing body empowered by the document may enact laws to promote the general welfare of the people. In some countries, this has been used as a basis for legislation promoting the health, safety, morals, and well-being of the people governed thereunder (also known as the police power
). Such clauses are generally interpreted as granting the state broad power to legislate or regulate for the general welfare that is independent of other powers specified in the governing document.
provides in its Preamble that one of its purposes is to "promote the general welfare". A comparative, international analysis of the meaning of this phrase in the Argentine constitution is provided by a report from the Supreme Court of Argentina
:
contains two references to "the General Welfare", one occurring in the Preamble
and the other in the Taxing and Spending Clause
. It is only the latter that is referred to as the "General Welfare Clause" of this document. These clauses in the U.S. Constitution are exceptions to the typical use of a general welfare clause, and are not considered grants of a general legislative power to the federal government as the U.S. Supreme Court
has held:
Thomas Jefferson
explained the latter general welfare clause for the United States: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”
In 1824 Chief Justice
John Marshall
described in obiter dictum
a further limit on the General Welfare Clause in Gibbons v. Ogden
: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."
The historical controversy over the U.S. General Welfare Clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."
The two primary authors of the The Federalist
essays set forth two separate, conflicting interpretations:
While Hamilton's view prevailed during the administrations of Presidents
Washington
and Adams
, historians argue that his view of the General Welfare Clause was repudiated in the election of 1800
, and helped establish the primacy of the Democratic-Republican Party for the subsequent 24 years.
Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co., in which a tax on child labor
was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause
. This narrow view was later overturned in United States v. Butler
. There, the Court agreed with Associate Justice
Joseph Story's
construction in Story's 1833 Commentaries on the Constitution of the United States. Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers. Consequently, the Supreme Court held the power to tax and spend is an independent power and that the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare.
Shortly after Butler, in Helvering v. Davis
, the Supreme Court interpreted the clause even more expansively, conferring upon Congress a plenary power
to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states
into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole
. To date, the Hamiltonian view of the General Welfare Clause predominates in case law.
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
s, as well as in some charter
Charter
A charter is the grant of authority or rights, stating that the granter formally recognizes the prerogative of the recipient to exercise the rights specified...
s and statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s, which provides that the governing body empowered by the document may enact laws to promote the general welfare of the people. In some countries, this has been used as a basis for legislation promoting the health, safety, morals, and well-being of the people governed thereunder (also known as the police power
Police power
In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...
). Such clauses are generally interpreted as granting the state broad power to legislate or regulate for the general welfare that is independent of other powers specified in the governing document.
Argentina
The Constitution of ArgentinaConstitution of Argentina
The constitution of Argentina is one of the primary sources of existing law in Argentina. Its first version was written in 1853 by a Constitutional Assembly gathered in Santa Fe, and the doctrinal basis was taken in part from the United States Constitution...
provides in its Preamble that one of its purposes is to "promote the general welfare". A comparative, international analysis of the meaning of this phrase in the Argentine constitution is provided by a report from the Supreme Court of Argentina
Supreme Court of Argentina
The Supreme Court of Argentina is the highest court of law of the Argentine Republic. It was inaugurated on 15 January 1863. However, during much of the 20th century, the Court and, in general, the Argentine judicial system, has lacked autonomy from the executive power...
:
United States
The United States ConstitutionUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
contains two references to "the General Welfare", one occurring in the Preamble
Preamble to the United States Constitution
The Preamble to the United States Constitution is a brief introductory statement of the Constitution's fundamental purposes and guiding principles...
and the other in the Taxing and Spending Clause
Taxing and Spending Clause
Article I, Section 8, Clause 1 of the United States Constitution, is known as the Taxing and Spending Clause. It is the clause that gives the federal government of the United States its power of taxation...
. It is only the latter that is referred to as the "General Welfare Clause" of this document. These clauses in the U.S. Constitution are exceptions to the typical use of a general welfare clause, and are not considered grants of a general legislative power to the federal government as the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has held:
- the Preamble to the U.S. Constitution "has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments"; and,
- that Associate JusticeAssociate Justice of the Supreme Court of the United StatesAssociate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Joseph StoryJoseph StoryJoseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
's constructionStatutory interpretationStatutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
of the Article I, Section 8 General Welfare Clause—as elaborated in Story's 1833 Commentaries on the Constitution of the United States—is the correct interpretation. Justice Story concluded that the General Welfare Clause is not an independent grant of power, but a qualification on the taxing power which included within it a power to spend tax revenues on matters of general interest to the federal government.
Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
explained the latter general welfare clause for the United States: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”
In 1824 Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
described in obiter dictum
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
a further limit on the General Welfare Clause in Gibbons v. Ogden
Gibbons v. Ogden
Gibbons v. Ogden, 22 U.S. 1 , was a landmark decision in which the Supreme Court of the United States held that the power to regulate interstate commerce was granted to Congress by the Commerce Clause of the United States Constitution. The case was argued by some of America's most admired and...
: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."
The historical controversy over the U.S. General Welfare Clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."
The two primary authors of the The Federalist
Federalist Papers
The Federalist Papers are a series of 85 articles or essays promoting the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788...
essays set forth two separate, conflicting interpretations:
- James MadisonJames MadisonJames Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax. - Alexander HamiltonAlexander HamiltonAlexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
, only after the Constitution had been ratified, argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.
While Hamilton's view prevailed during the administrations of Presidents
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
and Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
, historians argue that his view of the General Welfare Clause was repudiated in the election of 1800
United States presidential election, 1800
In the United States Presidential election of 1800, sometimes referred to as the "Revolution of 1800," Vice-President Thomas Jefferson defeated President John Adams. The election was a realigning election that ushered in a generation of Democratic-Republican Party rule and the eventual demise of...
, and helped establish the primacy of the Democratic-Republican Party for the subsequent 24 years.
Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co., in which a tax on child labor
Child labor
Child labour refers to the employment of children at regular and sustained labour. This practice is considered exploitative by many international organizations and is illegal in many countries...
was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
. This narrow view was later overturned in United States v. Butler
United States v. Butler
United States v. Butler, , was a case in which the Supreme Court of the United States ruled that the processing taxes instituted under the 1933 Agricultural Adjustment Act were unconstitutional...
. There, the Court agreed with Associate Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Joseph Story's
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
construction in Story's 1833 Commentaries on the Constitution of the United States. Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers. Consequently, the Supreme Court held the power to tax and spend is an independent power and that the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare.
Shortly after Butler, in Helvering v. Davis
Helvering v. Davis
Helvering v. Davis, 301 U.S. 619 , was a decision by the United States Supreme Court, which held that Social Security was not a contributory insurance program. The Court defended the constitutionality of the Social Security Act of 1935, requiring only that welfare spending be for the common benefit...
, the Supreme Court interpreted the clause even more expansively, conferring upon Congress a plenary power
Plenary power
A plenary power or plenary authority is the separate identification, definition, and complete vesting of a power or powers or authority in a governing body or individual, to choose to act on a particular subject matter or area...
to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole
South Dakota v. Dole
South Dakota v. Dole, 483 U.S. 203 , was a case in which the United States Supreme Court considered federalism and the power of the United States Congress under the Taxing and Spending Clause.-Background:...
. To date, the Hamiltonian view of the General Welfare Clause predominates in case law.