General Welfare (Part 1) Other uses of the term in 1787.

Perhaps no single Clause is more contentious than the General Welfare clause, found in Article I Section 8 Clause 1 of the Constitution,

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

In particular the part of “to pay the Debts and provide for the common Defence and general Welfare” being the one that is most often cited as granting the Federal Government a broad and sweeping amount of power. Many things Congress does, or wishes to do are justified as being for the “General Welfare” of the United States, that many may contend it does not permit.

We also see the term in the Preamble:

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, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Two completely opposite points of view on this Article leads to either an expanded government on one side, or it leads to the conclusion of an out of control government on the other. Is General Welfare a general statement granting broad power, or is it something other than the broad powerful statement?

So does “General Welfare” infer the entire general welfare for the United States, or is it a general term itself with no specific meaning of power?

The first thing to do is figure out is where did this term come from? Do we see this term used elsewhere, if so how is it used and implied.

Other Uses of General Welfare

Perhaps the first place to look is the immediate predecessor to the Constitution, the Articles of Confederation. Two times the term “General Welfare” appears in the Articles.

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.
All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

But the entire point of the new Constitution was to replace the Articles of Confederation, because the Articles did not have the strength needed for a National Government. The first one is not exactly the same as the preamble, but is in similar context. Found in Article III of the the Articles, this is the portion describing the purpose of the Articles of Confederation, just as the preamble does in the Constitution, and as such is not part of a power clause, thus clearly does not infer power, just as the preamble.

However the Second instance of General Welfare in the Articles of Confederation, found in Article VIII, is a power delegating part. The power in concern is the funding of war, the common defense, or general welfare, as allowed by the Congress Assembled from a common treasury, but paid by the States. Not only is General Welfare mentioned in both, so is Common Defense. If this term means the same thing in both document [written only 10 years apart], why did the Congress lack the power to suppress Shays Rebellion, or other acts by states that were not in the interest of the Union?

Another similarity of the term between the Articles of Confederation and the Constitution is what follows both, after the “power” clause it is used in. They are both followed by an enumeration of powers to Congress, specific powers granted. The Articles of Confederation is followed by 7 well enumerated powers for, and 1 prohibitive clause, while the Constitution is followed by 17 enumerated clause, and section 10 of prohibitive acts.

We also General Welfare [or some close form of it] used in State Constitutions, all ratified within the 12 years or prior the Convention of 1787.

Pennsylvania Constitution (September 28,1776) Preamble

We, the representatives of the freemen of Pennsylvania, in general convention met, for the express purpose of framing such a government, confessing the goodness of the great Governor of the universe (who alone knows to what degree of earthly happiness mankind may attain, by perfecting the arts of government) in permitting the people of this State, by common consent, and without violence, deliberately to form for themselves such just rules as they shall think best, for governing their future society, and being fully convinced, that it is our indispensable duty to establish such original principles of government, as will best promote the general happiness of the people of this State, and their posterity, and provide for future improvements, without partiality for, or prejudice against any particular class, sect, or denomination of men whatever, do, by virtue of the authority vested in use by our constituents, ordain, declare, and establish, the following Declaration of Rights and Frame of Government, to be the CONSTITUTION of this commonwealth, and to remain in force therein for ever, unaltered, except in such articles as shall hereafter on experience be found to require improvement, and which shall by the same authority of the people, fairly delegated as this frame of government directs, be amended or improved for the more effectual obtaining and securing the great end and design of all government, herein before mentioned.

Four Additional States have some other type of reference similar to “General Welfare”.

Maryland contains in its Bill of Rights in Article I (November 11, 1776)

That all government of right Originates from the people, is founded in compact only, and instituted solely for the good of the whole.

New York (April 20, 1777), and North Carolina (December 18, 1776) contain a similar use in their respective preambles.

New York, “…institute and establish such a government as they shall deem best calculated to secure the rights and liberties of the good of the people of this state, most conducive of the happiness and safety of their constituents in particular, and America in General”.
North Carolina, “…for the express purpose and framing a Constitution, under the authority of the people, most conducive to their happiness and prosperity, do declare, that a government of this State shall be established…”.

Of the fours states previously mentioned, three of them [PA, NC, NY] contained a term of similar context in its preamble, a non power and purpose explaining section of the Constitution. Maryland contained the term in its Bill of rights, an empowering function for the people, and limiting act on a government. In Maryland it is used a a descriptive term of the purpose of government, but gives no power.

Only New Hampshire contained a similar phrase in a power enacting section of its constitution found in Part II Article V [Power to Make Laws, Elect Officers, Define Their Powers and Duties, Impose Fines and Assess Taxes; Prohibited from Authorizing Towns to Aid Certain Corporations.]

New Hampshire [P2A5] And farther, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, and of the subjects of the same, for the necessary support and defense of the government thereof, and to name and settle biennially, or provide by fixed laws for the naming and settling

Of all the instances we see “General Welfare” or some similar term in a charter of Government prior to the Constitution, only two of them occurred in a section that delegated a function of power. In regard to one in the Articles of Confederation, it is apparent it did not give the Congress Assembled [the proper term of Congress under the Articles] the reign of power as general welfare is contended to give today. The Articles proved to be ineffective in governance of a Nation due to the lack of power it had. In conjunction with general welfare in the Articles, we also see the similar phrase “Common Defense” preceding it as we do in the current Constitution, yet with both of these powers, the Articles lacked the ability to quell a rebellion in Massachusetts. If the term was to convey the power it is argued it does today, the Congress Assembled would have had the power to not only deal with this rebellion as it concerned the General Welfare of the whole nation, it would also have provided for the common defense from armed insurrection, yet IT DID NOT. general Welfare in the Articles conveyed no power to the Congress Assembled, because it was not meant to, it was used only as a general term describing the following enumerated powers that were granted to the Congress Assembled, none of which included the ability to confront rebellion or insurrection. It can only reason, that this term was in fact not a power delegating clause in the Articles of Confederation, and can only be nothing more than a descriptive term of the general purpose, not responsibility, of the government.

But with New Hampshire however, the term was specifically conveyed as a empowerment clause to the Legislature, “Power to Make Laws…as they may judge for the benefit and welfare of this state”. But this was also proceeded by a limiting clause,”so as the same be not repugnant or contrary to this constitution”, immediately limiting the scope of how far the laws the legislature may pass can in fact go. Of all the instances we see with general welfare this is the only one that directly conveys it as a power, no other instance does. In its use in the New Hampshire Constitution it does not leave doubt as to it doing this, but also limits to what point it may be used.

It would be very reasonable to conclude, that the term itself was not used as a conveyance of power, if it was the term was specifically and unequivocally stated as such, but rather it was used as only a descriptive term on the purpose of government, not a power itself of government.

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