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03/01/2022

David Schwartz: Mr. Madison's War on the General Welfare Clause
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted Mr. Madison's War on the General Welfare Clause (57 pages) on SSRN.  Here is the abstract: 

The General Welfare Clause of Article I, section 8, clause 1 of the Constitution ("Clause 1"), though ambiguous, is most naturally read to grant Congress the power to "provide for ... the general welfare", that is, to legislate on all national matters. James Madison understood this and recognized that this "general welfare interpretation" of Clause 1 presented a major textual obstacle to his tendentious "enumerationist" interpretation of federal powers: that the "the essential characteristic" of the Constitution was to grant only limited enumerated powers to the federal government. Madison therefore waged a 50-year campaign to render the General Welfare Clause "harmless," as an essential element of his broader project to win his preferred enumerationist interpretation and erase the nationalist interpretations of his one-time Federalist allies. Madison achieved a partial victory in this political struggle for constitutional meaning, by taming the General Welfare Clause and establishing enumerationism as an ideology to which we pay continued lip service. But his arguments against the general welfare interpretation, based primarily on text and Framers' intent, were circular, fallacious, or disingenuous. The weakness of Madison's arguments on this critical issue of federal power may account for his puzzling drift toward embracing "compact theory""the view that states, and not the sovereign people of the United States, are the true parties to the Constitution. Madison's war on the General Welfare Clause casts doubt on the practice of treating his partisan views on enumerationism as authoritative statements of the Constitution's original meaning.

Debunking the enumerated powers interpretation of the Constitution is a heavy lift indeed, and I'm not at all persuaded.  A couple of quick nonexhaustive points: 

(1)  The text indicates that the general welfare subclause is not a general power.  Here's the whole clause:

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;

Just on its own, the general welfare subclause looks like a limit on the power to tax (the main subject of the whole clause).  If it were otherwise, one would expect that it would be in a standalone clause (as the other main powers are), not in a subclause, and especially not in a subclause sandwiched between the main power (taxation) and a limit on the main power (that duties, etc., must be uniform).  I think it quite apparent that the clause says Congress can lay taxes in order to provide for the general welfare (and common defense), but not otherwise, and that moreover the taxes have to be uniform throughout the country.

The rest of Article I, Section 8 supports that reading, because it contains a series of powers that are obviously in pursuit of the general welfare and/or common defense (e.g., interstate commerce, punishing counterfeiting, establishing post offices, granting patents and copyrights, declaring war, raising and supporting armies, providing for a navy, and calling forth the militia, just to pick a few).  Every single one of these grants is superfluous if Congress has a general power (not limited to spending) to provide for the general welfare (meaning, to regulate for the general welfare) and common defense.  To be sure, the Constitution has some redundancies, but this is more redundancy than can be reasonably credited.

(2) In Federalist 45, Madison famously wrote that "The powers delegated by the proposed Constitution to the federal government are few and defined."  Perhaps this was just Madison's "tendentious" view, but I'm not aware that anyone on the federalist side disputed it at the time.  As such, it was a core understanding on which the Constitution was ratified. And it is obviously inconsistent with the idea that Congress can regulate for the general welfare, and consistent with the idea that Congress' regulatory authority is limited to enumerated powers.

(3) In the bank debate, Madison and Hamilton famously debated the constitutionality of Congress chartering a national bank.  Hamilton said it was within Congress' power; Madison said it wasn't.  But they both argued on the assumption that Congress had only enumerated powers.  Hamilton said (in an argument repeated without attribution by Chief Justice Marshall in McCulloch) that chartering the bank was part of Congress' (enumerated) necessary and proper power.  

There are other points to be made, but I'll stop with these.  In this case, I think Madison (and Hamilton) had it right.