The General Welfare; C. Carson

My first reaction to that was to deny that the document is particularly vague or, for that matter, obscure. "Why,." she persisted, "does it con tain a clause on the general wel fare?" Actually, her question was a good one, and it gave point to her observation on the vagueness of the Constitution, if, as I think, I know where she was coming from, as they say. She is a college sophomore and is taking courses in American his tory and government, among others. Undoubtedly, she had hoped to find that the Constitution would be a bulwark against the claims of the welfare state. Yet, after studying it in her classes, she has been struck by its ambiguity and what appears to be the slipperiness of its phrases. It is my hope that what follows may Dr. Carson has written and taught extensively, spe cializing in American intellectual history. He is the author of several books, his most recent being Orga nized Against Whom? The Labor Union in America.

He is working at present on A Basic History of the United States to be published by Western Goals, Inc. throw some light on the troublesome phrase, both for sophomores and the rest of us as well. The phrase, "general welfare," oc curs twice in the Constitution. It oc curs first in the Preamble, which an nounces that one of the purposes of the Constitution is to "promote the general Welfare." Since this is a statement of purpose, not a grant of power, it need not detain us beyond noting that it is there. The other use of the phrase, however, is much more significant. It is contained in the first sentence of Article I, Section 8, which lists the powers of Congress. Equally important, it is used in connection with the grant of the power of taxa tion, which, then as now, was reck oned to be an essential power of gov ernment. The relevant clause reads, "The Congress shall have Power to lay and collect Taxes, Duties, Im posts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States .... " Clearly, Congress is em powered to levy taxes to provide for the general welfare. Viewed from the 487 488 THE FREEMAN August present perspective, this gives color, at least, to the idea that the welfare state has some constitutional foun dation.

But that is to look at the matter wrong-end-to. What counts, in the first place, is what the words meant when they were used. "Welfare" is commonly used today to refer to or denote government programs to pro vide for the poor, the disabled, those without work, and those reckoned to be without sufficient means to pro vide for their basic wants. It is so used in such phrases as, welfare state, welfare programs, welfare worker, and welfare recipient. Until quite recently it was used in that way in the name of a cabinet rank department, namely, the Depart ment of Health, Education and Wel fare. This usage, however, was un known to the makers of the Constitution. If they had intended to authorize what are nowadays called welfare programs, they would not have used the word, "welfare," to ex press that intent. It is the other way around: welfare programs bear that name to give the color of constitu tionality to them. But let that wait for a bit.

What Americans began calling welfare programs in the late 1930s, or thereabouts, the Founders would have known by the name of "poor relief," so far as they were familiar with it at all. In England, tax sup ported relief of the poor was required under the poor laws, more specifically, the Elizabethan Poor Law, during the American colonial period. Poor laws were passed in the wake of the Reformation, the sup pression of monasteries, and the confiscation of church lands. The destitute had received aid before that time from organizations within the church, but when much of the wealth of the church was taken away, the state took over last resort poor re lief. Actually, Parliament simply re quired that local communities tax for and provide such relief. A similar system took shape in the American colonies. In New En gland, relief for the poor was a charge upon the villages and towns, paid for from locally levied tax monies. Where the Anglican Church was estab lished, poor relief was a duty of the parishes, and parishioners were taxed to pay for it.

Poor relief was hardly a sump tuous affair in the colonies, or, for that matter, in 19th-century Amer ica. Unless the person were totally incapacitated, more attention was given to reforming the poor, i.e., get ting them to become productive and self-supporting, than helping them to fare well. For example, "The ves tries in Virginia disposed of the able bodied poor, destitute orphans, and the illegitimate children of inden tured servants by binding them to masters as apprentices or ser vants."l Workhouses were set up in 1983 THE GENERAL WELFARE 489 some places for those who had no visible means of support. In New England, "The town provided ma terials and tools with which the in mates were required to earn a liv ing."2 The incapacitated were sometimes provided almshouses, or otherwise given some minimal aid. Noone at the time of the writing of the Constitution would have as sociated the life of the poor depen dent upon public relief with the word welfare. "Welfare," in common usage for centuries, stems from the roots "well" and "fare", and means basi cally, according to my dictionary, a "state of faring well; well-being."

Synonyms are: "prosperity, success, happiness, weal." No sensible per son would have confused poor relief with prosperity, success, or even far ing well. Indeed, it was in every re spect the opposite. So far as my researches have re vealed, the word, "welfare," began to take on a new connotation around the beginning of the 20th century. The phrase, "welfare-manager," ap peared in print in England in 1904. Some factories, it seems, were em ploying people to assist workers in improving their well-being. Thus, the London Daily Express declared in 1916 that "Welfare work tends to improve the condition of life for women and girls employed in facto ries."3 However, the word still had no clear connection with relief for the poor. That connection was made in the United States in the course of the routinization, regularization, and bureaucratization of government aid programs in the 1930s. The key piece of legislation for making this change was the Social Security Act, passed in 1935. There is reason to believe that the adoption of the word "wel fare" in place of relief was a more or less deliberate action. It served a highly important political and con stitutional purpose. Much ofthe early New Deal legislation was tied up in court tests by 1934. As it turned out, the central pieces of New Deal leg islation were nullified in the next year or so. New Dealers were cast ing about frantically for ways to overcome the constitutional im passe.

Secretary of Labor Frances Per kins remarked to Supreme Court Justice Harlan Stone, in 1934, that she was worried that the social se curity system they were devising might not pass the constitutionality test. "The taxing power of the Fed eral Government, my dear," Stone replied; "the taxing power is suffi cient for everything you want and need." This pointed clearly toward the general welfare phrase in the clause of the Constitution authoriz ing taxation. In the same year Pro fessor E. S. Corwin, a recognized constitutional authority, main tained that the taxing and spending authority of Congress was un490 THE FREEMAN August checked by the Constitution. An other law professor declared, after the Supreme Court nullified crucial portions of the NRA: "The waters dammed by judicial restriction on the commerce power may break out in unwelcome fields of taxing and spending. What seems a great vic tory against national regulation may prove to be a Pyrrhic one."4 Indeed, it did. The Social Security Act leaned heavily upon the general welfare phrase in the Constitution.

It opens with the claim that it is "An Act to provide for the general wel fare by establishing a system of Fed eral old-age benefits, and by en abling the several States to make more adequate provision for aged persons, blind persons, dependent and crippled children, maternal and child welfare, public health, and the administration of their unemploy ment compensation laws .... "5 Social Security Involves a Bundle of Programs Since many people may not think of Social Security as a welfare mea sure, it may be .well to emphasize that, however old age benefits-the phrase then used to describe Social Security payments to the retired should be classified, there was a bundle of programs provided in the act which formed the core of the wel fare programs. The bundle included such things as pensions to those who had not contributed to Social Security and aid to dependent children, among others.

Moreover, these programs were administered in the states by what generally became known as welfare departments in the 1940s and 1950s. Frequently, they were formally ti tled, Department of Public Welfare (DPW), and those who administered the programs were referred to as welfare workers. In 1953, an assort ment of these programs were moved into the new cabinet ranked Depart ment of Health, Education and Wel fare. In this fashion, the shift from referring to these programs as poor relief to public welfare was com pleted, and the claim that such gov ernment activities were sanctioned by the reference in the Constitution to general welfare was linguistically ratified after the fact. The main point, of course, is that the Founders could not have in tended to include what they knew as poor relief in their reference to the general welfare. Poor relief was the last resort of local governments to provide minimal means for survival; it was at the opposite end of the scale from faring well. Beyond that, the evidence presented here points to ward the conclusion that as late as the early 1930s it took a great deal of straining to make the beginnings of an identification between relief and welfare.

But there is much more involved in this claim that the federal gov1983 THE GENERAL WELFARE 491 ernment is constitutionally autho rized to provide for the general wel fare than such programs as have been identified, however spuriously, with welfare. The whole concatenation of redistributionist and intervention ist programs which comprise the welfare state find their main justifi cation under it. Thus, we are brought back to the consideration of the claim regardless of what meanings may be attached to the word welfare. The crucial question then be comes whether or not there is a grant of power in the Constitution to pro vide for the general welfare. There are at least two approaches that can be taken to answering this question. One is to try to discern the meaning of the phrase, "general welfare," in the clause in which it occurs. The other is to see the clause within the context of the whole Constitution.

The Taxing Power First, then, let us look at the clause again, which reads: "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 Wel fare of the United States .... " One thing is certain: Congress is autho rized to levy taxes. Is it authorized to do anything else? My view is that it is not. What follows the word "Ex cises" is restrictive rather than being a grant of powers, restrictive of the taxing power. The operative words, in my reading of the relevant parts, would be that taxes are to be levied to "provide for the common Defence and general Welfare of the United States." What was being guarded against by these restrictions was the levying of taxes on the whole people to pay for some benefit to some locale, state, or region of the country. For exam ple, by this reading, taxes could not be properly levied to pay for an un dertaking such as the Tennessee Valley Authority. There was a defi nite interest in the Constitutional Convention to restrict such prac tices. At one point, Benjamin Franklin proposed that the general government be given "a power to provide for cutting canals where deemed necessary." Roger Sherman "objected. The expence in such cases will fall on the U. States, and the benefit accrue to the places where the canals may be cut."6 Franklin's motion was defeated by a vote of 8 states to 3.

But let me hasten to add that there is no way to make certain that my interpretation of the words as being restrictive is correct simply by read ing the clause and selecting empha ses within it. Furthermore, even if it were restrictive to the general welfare, there might still remain a potentially broad power to provide for the general welfare. After all, in ordinary usage the granting of the power to pay for something tacitly 492 THE FREEMAN August authorizes the buying of it. For ex ample, if I tell my daughter that she may write checks to pay for her col lege expenses, it is a logical infer ence that I am authorizing such ex penses. The same might be expected to apply to statements in the Consti tution. To see that they do not it is necessary to place the clause thus far examined in the context of the whole Constitution. Phrases and clauses that may appear to be vague and general when considered in iso lation take on much more precision when viewed from the angle of the whole.

A Limited Government The Constitution of the United States is no ordinary set of state ments or document. It is, if not unique, a very special case among documents. It describes the form for and grants power to a limited gov ernment. There are no omnibus grants of power in the Constitution; every power granted is limited in one or more and usually several ways (though not necessarily in the clause that grants it). It does not grant the powers of government generally to the United States government. What makes the Constitution al most unique is that the government it authorizes has only such powers as are granted to it. Thus, what can be inferred from ordinary speech or, for that matter, the general run of legal documents, is no guide in construing the provisions of the Consti tution. It is concerned with granting and limiting power in an arrange ment for which there are few, if any, parallels in ordinary life situations.

It is contrary to the whole tenor of the Constitution that the power to provide for the general welfare should have been granted in the sentence authorizing taxation. The men who drew the Constitution did not assume that by granting the power to tax in order to pay debts that they had authorized indebted ness. On the contrary, the very next sentence authorizes Congress "To borrow Money on the credit of the United States." Nor did they assume that by authorizing taxation to pay for the common defense that they had granted the power to bring into being a military establishment. On the contrary, again, there is a list of powers to accomplish this purpose granted to Congress: To define and punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations: To declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Ar mies" ..; To provide and maintain a Navy; To make Rules for the Gov1983 THE GENERAL WELFARE 493 ernment and Regulation of the land and naval Forces ....

If the power to provide for the common defense had been granted in the taxing power, each of these powers would have been implied by it. Such an enumeration of powers would have been redundant. Redun dancies are commonplace, of course, in ordinary legal documents nowa days, but the Constitution is re markably free of them. It is spare, lean, and once stated, repetition of a position is avoided. Indeed, the powers which the Founders reckoned necessary to the general welfare of the United States are enumerated along with those mentioned above. Among them are the power of Congress to enact uni form laws on bankruptcies, to coin money, to fix standards of weights and measures, to establish post of fices and post roads, to give authors and inventors exclusive right for a time to their writings and discover ies, and the like. Undoubtedly, they considered all the powers granted useful or necessary to the general welfare, including the powers of tax ation and those for a military estab lishment. But my point is that the powers granted were enumerated, and those not so enumerated were reserved to the states or to the peo ple.

That did not keep some from claiming or asserting that some object they wanted·to achieve by gov ernment was provided for in the phrases of the taxation clause, even in the early years of the Republic. The issue came up for President Madison in 1817, when he was pre sented with a bill for making inter nal improvements such as roads and canals. He vetoed it on constitu tional grounds. Madison's Interpretation of Enumerated Powers Madison said, in part, "The legis lative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not ap pear that the power proposed to be exercised by the bill is among the enumerated powers .... " Regarding the general welfare phrase specifi cally, he said: "To refer the power in question to the clause 'to provide for the common defense and general welfare' would be contrary to the es tablished and consistent rules of in terpretation, as rendering the spe cial and careful enumeration of powers which follow the clause nu gatory and improper. Such a view of the Constitution would have the ef fect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them .... "7 President Monroe echoed Madi son's views, and added some of his own, in vetoing a bill for maintain494 THE FREEMAN ing the Cumberland Road in 1822.

He denied that Congress had the power to do this. "If the power ex ist'" he said, "it must be either be cause it has been specifically granted to the United States or that it is in cidental to some power which has been granted. If we examine the specific grants of power we do not find it among them, nor is it inciden tal to any power which has been spe cifically granted." Among those from which he could not trace the power, he declared, was the clause· "to pay the debts and provide for the com mon defense and general welfare."8 In an addendum to his veto mes sage, he included this thought: "Have Congress a right to raise and appro priate the money to any and to every purpose according to their will and pleasure? They certainly have not. The Government of the United States is a limited Government, instituted for great national purposes, and for those only."9 In sum, then, it is most unlikely that the makers of the Constitution would have chosen the phrase, "gen eral welfare," to authorize the fed eral government to provide what they understood to be poor relief. It would have violated both their under standing of the meaning of words and the common practice as to what level of government should provide the relief. On the contrary, it appears that relief came to be called welfare to give it a semblance of constitutionality. Indeed, close analysis within the sentence and the context of the Constitution points to the con clusion that the reference "to pro vide for the general welfare" was the restriction of the taxing power rather than a separate grant of power.

In short, no powers were enumer ated granting authority to the fed eral government either to enact re lief measures or to erect what has come to be called a welfare state. Nor is the language of the Constitution especially vague or carelessly gen eral when it is viewed within the context of the whole document. It only appears to be so when wrenched out of context and construed to cover purposes not intended. i -FOOTNOTESlCurtis P. Nettels, The Roots of American Civilization (New York: Appleton-Century Crofts, 1963), p. 463. 2/bid., p. 462. 3This information comes from the Oxford En glish Dictionary. 4See Arthur M. Schlesinger, Jr., The Politics of Upheaval (Boston: Houghton Mifflin, 1960), pp.398-99. 5Henry S. Commager, Documents of Ameri can History, vol. II (New York: Appleton-Cen tury-Crofts, 1962), p. 326. Italics added. 6Charles C. Tansill, ed.,Formation ofthe Union of the American States (Washington: Govern ment Printing Office, 1927), p. 724.

7James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, vol. II (New York: Bureau of National Literature, 1897), pp. 569-70. 8/bid., p. 712. 9/bid., p. 736.