General Welfare
The “general welfare” is forged as two aspects of liberty intertwine in the Darwinian process of Creative Destruction:
- Choices: Liberty is tolerance of Disruptive Minorities offer society choices.
- Sorting of Choices: Liberty is the Wisdom from the Many sorting those choices in the Darwinian crucible of free markets and speech. The aggregated wisdom of all of us, with each of us acting in our own self-interest, is wiser than the wisest of us at choosing between choices. Wisdom from the Many is repeatedly illustrated in the book, Wisdom of Crowds
There is no minority as tiny and disrputive as innovators:
- Consider Ford, Edison, Bell, the Wright Brother, Bill Gates, Steve Jobs. Their Creative Destruction creates and destorys millions of jobs.
- Consider Rosa Parks, Martin Luther King, Jefferson, Madison, Washington. Their Creative Destruction displaced the Governing applying violence to stifle liberty.
Why Nations Fail, the Origins of Power, Properity, and Poverty provides many examples of how:
Unlike how liberty intertwines to create the general welfare, we create government for the essential purpose of monopolizing violence to coerce compliance with law. Thomas Paine stated this clearly in Common Sense:
SOME writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher.
It is essential to properly combine the liberty and compliance with law:
- Inclusive institutions foster creative-destruction, wealth and power.
- Extractive institutions, government monopolies, stifle innovation to maintain the power base of the elite. American examples of extractive institutions:
- The near century of rotary telephones under Federal monopoly.
- The Federal highway monopoly’s protection of the gas mileage of the Model-T (25 mpg) is another.
- Federal subsidizing burning coal and oil by socializing pollution costs into Climate Change.
- Federal support for Illicit Energy, energy outside self-reliance from slavery and foreign oil.
The difficulty we confront with coercing compliance with law while retaining inclusive institutions was well stated by Madison in Federalist #51:
Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
Because we are not angels, by the Consent of the Governed, we granted governments sovereignty to be the Monopoly of Violence. We bound ourselves to compliance with laws created by that grant of sovereignty. We also limited how much violence the Governing can apply by limiting sovereignty. Relative to the US Federal government, we very specifically limited its sovereignty to waging war and coercing activities that create the path to war.
Limited Federal sovereignty is vividly clear in how the Constitution replaced the Articles of Confederation. The Articles had proved incompetent in waging war during the Revolution, in preventing domestic insurrection (Shay’s Rebellion), enforcing the Treaty of Paris, and skirmish between states over tarrifs and border disputes. We recognized that to survive as a nations, we need a general government that could coerce taxes from individual citizens to wage war. To limit the waging of war, we limited the Federal government to this one duty.
Federal mission statement, the Constitution’s Preamble, states the limites of the Federal Monopoly of Violence:
- Federal sovereignty is mandated to “provide” for the defense of Liberty for ourselves and our Posterity.
- Federal sovereignty is restricted to only “promote” the “general welfare”. We the People retained sovereignty and liberty over the “general welfare”.
Men are not angels. The men seeking to govern are not angels. We forbid the men seeking Federal powers to apply violence from forcing their view of the “general welfare” on the Governed.
The Article 1, Section 8 is subordinated to the Preamble limits.
“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”
At the Virginia Ratifing Convention Patrick Henry attacked the “general welfare” statement in Article 1, Section 8 (not the Preamble) is giving Congress unlimited powers. Madison responded:
“But in the general Constitution, its powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it? – for if its powers were to be general, an enumeration would be needless…But the rhetoric of the gentleman has highly colored the dangers of giving the general government an indefinite power of providing for the general welfare. I contend that no such power is given.”
James Madison, on the House floor during debates on a Cod Fishery Bill (February 1792):
The Constitution is an enumerate powers document.
“With respect to the words “General welfare” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense, would be a metamorphosis of the Constitution into a character, which there is a host of proofs was not contemplated by its Creators.”
The Constitution was ratified by those who understood the Constitution was an enumerate powers document.
“those who ratified the constitution conceived, that this is not an indefinite government deriving its powers from the general terms prefixed to the specified powers—but, a limited government tied down to the specified powers, which explain and define the general terms.”
It defies logitic to give a general power to do anything desired, then list specifics powers granted. If the Constitution granted Congress power over the “general welfare” it could have been shortened to a one sentence document, “Congress shall have unlimited taxing powers to do what it wishes in the name of the general welfare”.
It will follow, in the first place, that if the terms be taken in the broad sense they maintain, the particular powers, afterwards so carefully and distinctly enumerated, would be without meaning, and must go for nothing. It would be absurd to say, first, that Congress may do what they please; and then, that they may do this or that particular thing. After giving Congress power to raise money, and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to superadd a power to raise armies, to provide fleets, &c. In fact, the meaning of the general terms in question must either be sought in the subsequent enumerations which limits and details them, or they convert the government from one limited as hitherto supposed, to the enumerated powers, into a government without any limits at all.
Specific examples of the excesses and intrusion into the lives and wallets of the people. We face Climate Change and perpetual oil wars today because of Federal violation in mandating foreign oil addiction to power its highway monopoly. America has the highest incarceration rate in the world because of Federal intrusion into commerce via Prohibition and the War on Drugs.
“If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads other than post roads. In short, every thing, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.”
The term “general welfare” was carried over from the Articles of Confederation. The Articles were replaced by the Constitution to give the Federal government unlimited taxing powers for its limited sovereignty to “provide” for defense”.
It is to be recollected, that the terms “common defence and general welfare,” as here used, are not novel terms first introduced into this constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old articles of confederation, where, although they are susceptible of as great latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such powers as is now assigned to them. On the Contrary, it was always considered as clear and certain, that the old Congress was limited to the enumerated powers; and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it ever was supposed or suspected, that the old Congress could give away the money of the states in bounties to encourage agriculture or for any other purpose they pleased. If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.
Distort the meaning of the “general welfare” and there would be no independent judicary.
It is to be recollected, that the terms “common defence and general welfare,” as here used, are not novel terms first introduced into this constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old articles of confederation, where, although they are susceptible of as great latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such powers as is now assigned to them. On the Contrary, it was always considered as clear and certain, that the old Congress was limited to the enumerated powers; and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it ever was supposed or suspected, that the old Congress could give away the money of the states in bounties to encourage agriculture or for any other purpose they pleased. If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.
The Federal government created by the Constitution is not like other governments. Its powers are enumerated, and those not enumerated are not granted.
“this government as limited to certain enumerated powers, instead of extending, like other governments to all cases not particularly excepted.”
Twisting the meaning of the “general welfare” since the 17th Amenment in 1913 has completely changed the American dream from liberty to striving to repay house, car, and college loans. Federal monopolies controlled communications, power, and transportation in most of the 20th Century in the name of the “general welfare”.
I venture to declare it as my opinion, that were the power of Congress to be established in the latitude contended for, it would subvert the very foundation, and transmute the very nature of the limited government established by the people of America:
Fortunately, courts declaring the Federal communications monoly unconstitutional in 1982 illustrates to value of liberty. After a century of rotary telephones, long dormant innovations commercialized once liberty was restored. As soon as liberty is restored in power and transportation those infrastructures will digitize. The solutions to Climate Change and oil-wars are known and blocked by Federal monopolies falsely created in the name of Congress determining the “general welfare”.
Late in his life Madison reflected again on the “general welfare” clause. Congress was not granted more powers than the Preamble grants to the entire Federal government. James Madison explains this to Andrew Stevenson, 27 Nov. 1830
The obvious conclusion to which we are brought is, that these terms, copied from the Articles of Confederation, were regarded in the new as in the old instrument, merely as general terms, explained and limited by the subjoined specifications, and therefore requiring no critical attention or studied precaution.
That the terms in question were not suspected in the Convention which formed the Constitution of any such meaning as has been constructively applied to them, may be pronounced with entire confidence; for it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant and cautious definition of Federal powers should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.
Consider for a moment the immeasurable difference between the Constitution limited in its powers to the enumerated objects, and expounded as it would be by the import claimed for the phraseology in question. The difference is equivalent to two Constitutions, of characters essentially contrasted with each other–the one possessing powers confined to certain specified cases, the other extended to all cases whatsoever; for what is the case that would not be embraced by a general power to raise money, a power to provide for the general welfare, and a power to pass all laws necessary and proper to carry these powers into execution; all such provisions and laws superseding, at the same time, all local laws and constitutions at variance with them? Can less be said, with the evidence before us furnished by the journal of the Convention itself, than that it is impossible that such a Constitution as the latter would have been recommended to the States by all the members of that body whose names were subscribed to the instrument?
Passing from this view of the sense in which the terms common defence and general welfare were used by the framers of the Constitution, let us look for that in which they must have been understood by the Convention, or, rather, by the people, who, through their Conventions, accepted and ratified it. And here the evidence is, if possible, still more irresistible, that the terms could not have been regarded as giving a scope to Federal legislation infinitely more objectionable than any of the specified powers which produced such strenuous opposition, and calls for amendments which might be safeguards against the dangers apprehended from them.
Here are a majority of the States proposing amendments, in one instance thirty-three by a single State; all of them intended to circumscribe the powers granted to the General Government, by explanations, restrictions, or prohibitions, without including a single proposition from a single State referring to the terms common defence and general welfare; which, if understood to convey the asserted power, could not have failed to be the power most strenuously aimed at, because evidently more alarming in its range than all the powers objected to put together; and that the terms should have passed altogether unnoticed by the many eyes which saw danger in terms and phrases employed in some of the most minute and limited of the enumerated powers, must be regarded as a demonstration that it was taken for granted that the terms were harmless, because explained and limited, as in the “Articles of Confederation,” by the enumerated powers which followed them.
A like demonstration that these terms were not understood in any sense that could invest Congress with powers not otherwise bestowed by the constitutional charter, may be found in what passed in the first session of the first Congress, when the subject of amendments was taken up, with the conciliatory view of freeing the Constitution from objections which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms “common defence and general welfare” unnoticed in the long list of amendments brought forward in the outset, but the journals of Congress show that, in the progress of the discussions, not a single proposition was made in either branch of the Legislature which referred to the phrase as admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance and silence on such an occasion, and among so many members who belonged to the part of the nation which called for explanatory and restrictive amendments, and who had been elected as known advocates for them, cannot be accounted for without supposing that the terms “common defence and general welfare” were not at that time deemed susceptible of any such construction as has since been applied to them.
Allow me, my dear sir, to express on this occasion, what I always feel, an anxious hope that, as our Constitution rests on a middle ground between a form wholly national and one merely federal, and on a division of the powers of Government between the States in their united character and in their individual characters, this peculiarity of the system will be kept in view, as a key to the sound interpretation of the instrument, and a warning against any doctrine that would either enable the States to invalidate the powers of the United States, or confer all power on them.