General welfare clause
 

This has been brought up in several discussions by various people to support the constitutionality of congressionally mandated health insurance. I submit the following to refute that claim.

Limited Government In Relation to Some Fields of Power Prohibited to the Federal Government

I offer this. I'm don't know much about the American Constitution, so bear with me.

Article 1, Section 8, Clause 1: Alexander Hamilton, Report on Manufactures

From what I gather, this is Hamilton on the subject of commerce (i.e. manufacturing) and the need to spend tax money within it for the "General Welfare" of the U.S. There is reference to the interest of "learning of Agriculture of Manufactures and of Commerce." So, generally, he is in favour of defining the "General Welfare" as spending money to support agriculture and commerce.

But the issue he takes is that it cannot be used locally. The money must be spent generally (i.e. nationally).

Could it not be argued that a national health care system is for the "General Welfare" in that it offers a basic need to Americans nationally? That without access to this basic need it could impede the productive capacity of the country as a whole?

Finally, he writes that "General Welfare" is a good term because it doesn't impose limits on its definition, which is good for a Union that faces "a vast variety of particulars." It's hard to say he could foresee America as it is today, so maybe it was a good thing he was in that mindset.

The bigger question is this:

Since the phrase "promote the general welfare" appears in the Preamble, and not in the Body of the document in question, does it carry any legal weight? Black's Law Dictionary says no:

Preamble. A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished. Generally, a preamble is a declaration by the legislature of the reasons for the passage of the statue and is helpful in the interpretation of any ambiguities within the statute to which it is prefixed. Griffith v. New Mexico Public Service Comm., 86N.M 113, 520 P2d 269, 271 It has been held however to not be an essential part of act, and neither enlarges nor confers powers.

The underlined portion at the end is my emphasis. Read that again; nothing in a Preamble legally confers or enlarges powers. Meaning that, unless the power to "promote the general welfare" is to be found somewhere else in the Constitution other than in the Preamble, no such power exists.


Edited To Add:

I have reviewed the OP, and must now both look silly and rephrase my above objection. My objections in regard to the use of "promote the general welfare" in the Preamble to the Constitution still stand. However, I find I need to conduct a more detailed review and re-reading of Art.1 before proceeding. Mea Culpa.

The healthcare issue, as it has been since day one, is federalism vs. anti-federalism. DK interprets the General Welfare clause through the lens of the anti-federalists and people like, say, me, view it more from a federalist perspective. Because that's an argument that's simply not going to be won, though, the issue has to simply be stripped of ideology down to the brass tax (no pun intended) of what's best for the country. We already have plenty of threads on the merits of something like single-payer, so I'll leave that conversation there.

Thinking of the General Welfare clause in a wider scope, though, requires one not just to read the scribbled notes of the founding fathers, but also the case law dealing with it. The judicial, after all, is responsible for rendering the official interpretation of a given law. FDR's new deal was given the stamp of approval from the Supreme Court, therefore those powers are not unconstitutional. Whether one agrees with those judges or not, for now it's legal. The Supreme Court adopted a more expansive view of the General Welfare clause than most anti-federalists are comfortable with. You can call it fascism or tyranny or Christmas, but it's not unconstitutional, at least not until there's another ruling on it.

I think if Hamilton wanted what he says he wanted, then the Constitution should have been clearer and/or more specific about it. It's generally poor form for a country to write important, nation defining documents one way, and then say in other speeches/letters "well, what we MEANT was...."

And if the preamble has no legal binding, then neither do any of the letters and speeches of the Founding Fathers that concern the Constitution.

so if the supreme court decided tomorrow that because todays threat of terrorism is so great, that searches of homes based on anonymous tips no longer need warrants because such a dangerous threat to life exists, that would be constitutional?

I think not, not anymore constitutional than if the supreme court said tomorrow that there is no individual right to own arms.

you should read up on 'the switch in time that saved nine' for a better look at WHY roosevelts policies all of a sudden came up hunky dory constitutional.

---------- Post added at 03:46 PM ---------- Previous post was at 03:44 PM ----------

the problem you have with that is that those writings were made available to the people of the states so that they knew EXACTLY what they were voting to ratify. Those letters explained in clear terms what meant what. It's self defeating to ignore them now for interpretations by 9 black robed tyrants 200 years later.

Yeah.

Don't confuse constitutional with right or what's best, because they're not synonymous. And you're not a judge. You're certainly welcome to your opinion, as am I, but I don't have the responsibility of judging for everyone what the constitution means. That's what we have the judicial for.

I'm a little curious as to how you interpreted BG's post.

If we desired a country that had people to decide whats 'right' or best for us, we'd not have started the revolutionary war.


We the people are the deciders will. Government is not supposed to have any power or authority to change the constitution at will or reinterpret clauses or amendments to suit needs of current times. It's why Art 5 was written.

I think he's trying to extrapolate too much out of it. he's taking hamiltons words of general funding and wanting to apply it to specific funding. probably because he thinks it's 'right' or whats best for us.

That's false equivalence and you know it. The Supreme Court is acting within its purview when it interprets the Constitution. Disagreement with DK does not a tyrant make.
Actually the responsibility of the Supreme Court according to the Constitution itself in section 2 of Article 3 is to make determinations as to the interpretation of the Constitution. No one is "changing the Constitution at will", though. The Supreme Court didn't add the General Welfare clause.
Can you explain the difference, in your mind, between general and specific funding? Can you give examples of each?

yes, it does. when the constitution was ratified, every single able bodied male KNEW that their right to arms couldn't be touched. Now, we have 'no right is absolute', reasonable regulation, and 'machine guns are too dangerous for civilians to own and that's why we have laws against them'. ALL of these are due to interpretations of later supreme courts in deciding whats 'best' for us.

this is not quite correct. their responsibility is to decide many different types of cases according to the constitutional text. Interpretation only came about from madison v. marbury.

hamilton and jefferson defined it quite well. i'll go with their definitions.

Wait, you're responding to "Disagreement with DK does not a tyrant make." with
?! How about a little tiny bit of objectivity here!
You're pulling things out of thin air.
The constitutional text includes the words "general" and "welfare" right next to each other, preceded by "promote the". The government is responsible for the promotion of the well-being of its citizens.
I'm asking your definitions. I can't agree or disagree with you, let alone delve into your thought process without knowing what you're talking about and this is an important part of the discussion.

How is funding agriculture or education any more or less general than funding health care?

LOL.

Applying religious fundamentalist logic to the constitution. :rolleyes:

Wake me when Jefferson, Madison and Hamilton post what the thinking was during all the backroom discussions that took place during that summer in Philadelphia.

Until then, I'll leave it to the judiciary (even if I dont always agree)..as they wisely and clearly stated in Article III.

I have a couple major problems with the way the general welfare clause is used:

1. It's appears in a preamble.

2. The way big government lovers like to apply the term goes against the grain of the intent of the entire document (LIMITED not UNLIMITED government).

3. Why on earth would the founders go on to specifically state all the other powers that the federal government had if all these items could of been simply lumped into general welfare clause. The way big government types use the term basically makes much of the rest of the text in the constitution redundant or irrelevant.

4. Lets not forget the crap FDR pulled in order to get his interpretation of the clause.

samcol, it's already been discussed that the clause appears not just in the Preamble, but also in Article I, Section 8.

Also, no one is saying that the clause is to be interpreted as a blank cheque.

I understand but much of that sentence still appears to be a preamble or summary for that section. Doesn't the general welfare clause make the rest of the powers redundant though?

I'll use to provide 'common defense' as an example because it seems to be used in a similar matter, however they go on and specifically describe: to raise and maintain and army and navy, organizing and disciplining the militia etc.

Similarly if you take 'general welfare' they go on to describe it in specifics with things like coining money, regulate commerce, borrow money etc.

In both cases if you use these two terms in a broad sense it makes the rest of the section rather pointless.

Since it specifically says they can form and maintain an army and navy, does that make the Air Force, Marines and Coast Guard unconstitutional?

Good point, but I don't think it's a stretch to include Marines and Cost Guard under the Navy clause.

Also, the Air Force did begin as a branch underneath the Army. Technically I guess you're right though but I really don't think it's an issue worth pursuing.

I only bring it up as an example of the absurd lengths one can go to as a originist/constructionist.

Can someone please show me the Article/Section which authorizes the Congress to force a citizen to purchase something?

Not an issue worth pursuing? The Air Force has a budget of $160 billion - if it's unconstitutional, we should save that money! Or do you mean it's not an issue worth pursuing because you agree with it? You're either going to be a strict constructionist or you're not.

Army: Yes. The ability to maintain a standing, professional Army was intentionally left out of the Constitution because the framers realized the danger such armies posed to individual and collective freedom. Large formations of infantry or other land-based soldiery were to be provided by the various Militias, with overall command going to their State Governors in time of peace, and to the President in time of declared war. Notice please how much more difficult it would be to start wars in other people's countries under such a system. Congress has the power to raise armies (nationalise the Militia) and support them during time of declared war, but the Constitution only authorises such support for a term of 2yrs. After the crisis was past, the naive hope of the Framers was that Congress would simply de-fund the thing, send the Militiamen home, and get back to business. Obviously this hope was misguided. I'd have preferred an outright prohibition on standing professional armies, personally.

Marines: No. The Marines are part of the Navy.

Coast Guard: Yes. The functions currently fulfilled by the CG are those originally intended for the peacetime Navy.

Air Force: Yes.

Ah, now that's a health care reform issue that I think is worth debating. It's one thing to tax everyone for government health care, just as we tax for public education and so forth, but I do agree that mandating the purchase of health insurance from private insurance companies is unacceptable.

I don't think it's an issue worth pursuing because it did stem from the army and essential functions as an army that can fly. It's such a non issue because without a doubt the founders would of included it had aviation been invented at the time. I consider it a red herring.

However, the issue of the general welfare clause is definitely worth discussing because of some of the glaring problems that some of us have been pointing out.

Characterizing taxes paying for a government program as a purchase is dishonest. I don't purchase the military or Social Security.

I'm inclined to agree, since the element of coercion makes it an involuntary transaction and therefore not, strictly speaking, a purchase. However, one of my favorite authors described Gov't thus: "The compulsory sale, for inflated prices, of unwanted services." I can think of few more fitting discriptions.

However, I think Cimmaron was referring to the requirements, in various versions of the Obamacare bills, which force people to purchase health insurance.

How about the FBI? The CIA?

That's not what Cimarron is talking about. He (or she?) is talking about the idea of government mandating that people purchase health insurance. I'd agree with you if we were talking about a single payer system where we're all just taxed for a national health insurance plan, but that's not what is being proposed. What is being proposed is that the government would require citizens to have health insurance, and possibly not even provide a government option with that requirement, thereby mandating that all citizens purchase something from a private company in order to obey the law. I'm a supporter of broad health care reform, but that is simply unacceptable, and thankfully if it passes it will likely be overturned in court. Even adding a public option into the mix, I'm not exactly sure how I feel about that. Seeing as how not all people will be getting the public option - certainly if states are able to opt out - the effect is still the same of government mandating that citizens purchase something from a private entity in order to achieve lawful residence.

...except that is not what I am talking about. There is a provision in the bill which mandates the purchase of health insurance. If an individual does not adhere to this mandate, they will be fined by the IRS an amount not to exceed $750 per individual and not to exceed $3800( I think) per household.

So, where in the Constitution is Congress granted the authority to mandate the citizenry to purchase something? For the sake of argument, imagine if this bill said, "Each adult must purchase and keep a pony. A person refusing to purchase and keep a pony will face a fine of $750/year."

I disagree. You are already required to have auto insurance. Requiring people to be responsible for their own health should be mandatory, and will be.

Auto insurance is state mandated, not federally mandated. They aren't mandating responsibility for your own health. If they were, they would be eliminating the tax-payer funded subsidies (public health insurance) - hence, you would truly be responsible for your own health. They are doing the exact opposite.

Oh he's talking about the thing that's just like car insurance, but that no one seemed to have a problem with until it because it was state-mandated instead of federally mandated, (which are in practice identical). My mistake.

at what point did the federalist papers get elevated to the status of law or a guide to interpreting it?
when were the federalist papers ratified as part of the constitution exactly?
if the federalist papers aren't part of the constitution, and if the constitutional order begins with it's ratification, so begins with the document ratified and not the preliminary debates, what difference does it make what alexander hamilton thought about the general welfare clause and its position? i mean, beyond it being of historical interest, the kind of thing you'd maybe write about were you a legal historian or constitutional historian or working on the late 18th century political culture under the articles of confederation...

huh? My sarcasm translator is on the fritz.

You're not required to have auto insurance. You are required to have auto insurance if you wish to legally own and operate a vehicle, but you're not required to own a vehicle by law either.

I actually agree with you entirely. While they do serve as a guide to better understanding why the Constitution was written the way that it was, they do not serve as law themselves. There are many conversations here which question the reaction the framers would have to our current government and the Federalist Papers offer insight into what that reaction would be.

Also not entirely correct, unless things are radically different in the US.

You must have insurance to operate a vehicle on public roads. Doing so on private property carries no such requirement.

And I'm still not sure I understand how this relates to health care in any meaningful way.

You're correct. But the point is that no one is required absolutely to have auto insurance.

It relates to health care because some of the proposed 'health care reform' plans would require all people to purchase health insurance.

If I'm not mistaken, this is already the case in at least one state (Massachusetts), but I don't live there, so I don't know the particulars.

Again, the question is: Where in the Constitution is Congress authorized to REQUIRE an individual to purchase something.

Fuck it, I'll answer it myself. It is absolutely not there. Thus, any bill which contains such wording is unconstitutional. Those writing this bill KNOW that this provision is unconstitutional, and they are writing it anyway. Those same people swore an oath to uphold the constitution. Take that for what it's worth - nothing.