“Ours, as you know, is a government of limited powers. The Constitution confers the authority for certain actions upon the President and the Congress, and explicitly prohibits them taking other actions. This is done to protect the rights and liberties of the people”.1
President Calvin Coolidge
“Of course one does meet brilliant men’, said Nikolay Nikolayevich, ‘but they are isolated. The fashion nowadays is all for groups and societies of every sort.—It is always a sign of mediocrity in people when they herd together…The truth is only sought by individuals, and they break with those who do not love it enough”.2
Dr. Zhivago
Long ago, in the year 1787, a tribe known as Gardenites dwelt in the lush valley Arboretum that provided all their needs. Growing in its midst was a tree named Liberty. Inscribed on its sacred bole was General Welfare, a list of powers delegated to Arboretum’s government they called Steward. Only one piece of fruit grew from this tree. Because it contained the seeds of Liberty’s renewal, Gardenites prohibited anyone to eat it. Even though they lived in paradise, some residents began imagining how they could make Arboretum better, if they were charge. Instead of limiting Steward to only protecting Liberty, the imaginers, called Consolidators, would grant him unlimited power to reorganize and reorder life in Arboretum according to their vision for how it should be run. When Consolidators made their proposal to the Gardenite Assembly, they in turn consulted Liberty. General Welfare forbade Steward from taking any action not on its list. Finding no authority for the proposal, Gardenites voted no. A silver-tongued man named Beguile led the Consolidators. His manners were serpent like; his clothes shimmered as if gold. Words flowed from his sibilant tongue like honey as he promised Gardenites a life freed from toil and a cornucopia of plenty for all if they but ate the fruit of Liberty. Seduced by Beguile, Gardenites took and ate the fruit. With the last seed consumed, the words inscribed on Liberty faded, dissolved, and blew away like dust. Consolidators, whose desire was to rule over all Gardenites, seized control and became Steward. Soon briars and thorns grew up among the crops making harvests meager. Rains ceased, the ground grew parched and cracked, and crops began to die. Steward beat the Gardenites to work harder, taking the first portion of each harvest to share with obedient followers. They raided Gardenite homes for items of value they dispensed among themselves. A great sound rent the air. Liberty cracked, split asunder, and crashed to the ground. Arboretum was no more.
At this writing, Democrats and Republicans debate the size and cost of Mr. Biden’s “infrastructure” bill. Missing from the debate is the question as to whether or not federal infrastructure bills are legal in the first place. If not, arguments over size and cost are moot.
Professor Brion McClanahan writes the “general welfare” is one of the most misunderstood phrases in the Constitution. Many, if not most Americans believe it means the federal government is to provide for their material well-being. This includes food and poverty assistance, medical care, paying for college, building roads and bridges, and so forth. This results from an “incorrect reading of the Constitution” leading to approximately “90 percent of what the federal government does being ‘unconstitutional’—and it’s all due to an expansion of government power under the guise of the ‘general welfare”.3
The most important part of the Constitution with respect to the exercise of federal power are Article 1, Sections 7, 8, and 9. They comprise “the power of the ‘sword and purse” consisting of restrictive clauses relative to Congress’s exercise of power. By ill-informed and dishonest reinterpretation of these clauses, they are the mechanisms by which those in power metamorphosed a federal into a national system of government. From day one, Founders who favored consolidating power in a strong central government [Consolidationists] worked to transform the restrictive design of the general welfare phrase into a positive authorization for what they wanted to do.4
Article 1, Section 8, the enumerated powers, comprise a closed loop. The states delegated to the federal government no powers outside it. Professor Forrest McDonald notes the taxation authority of the U.S. government is limited to the common defense and general welfare. Government may tax, borrow, and spend only for what is in the enumerated powers. No authority for infrastructure, roads, bridges, canals, transportation, and so forth is among that list. The Founders rejected federal funding for infrastructure projects because the states as a whole would pay for projects benefitting only one region or locale.5
States sent delegates to Philadelphia in May 1787, to revise the Articles of Confederation. Instead, during the next several months, they drafted a new Constitution. Among the factions attending were “nationalists” who wanted to create a strong central government of consolidated powers. Consolidated from the states, which then would become appendages of the central government with no autonomy or sovereign power of their own. If they succeeded, American government would become much like those in England and Europe wherein the powerful used it as a means to promote favored regional, commercial, nepotistic, and political special interests.
Delegates may not have shared a common vision for what form the new government should take, but they did share a common understanding of the words general welfare. They “lifted” them and their meaning from the document they were sent to revise. In both documents, general welfare refers to government actions benefitting “the union as a whole such as military hardware for the common defense” but not tax expenditures or financing of projects benefitting only specific localities, regions, states, and so forth. This restriction excludes federal involvement with any form of infrastructure or its maintenance.6
In order to create a national as opposed to a federal system, Consolidationists knew they had to alter the meaning of general welfare. James McHenry, of Maryland, wrote in his journal on 4 September 1787 that under the proposed Constitution, the “national” (sic) legislature could not, but should have the power to appropriate money to “erect lighthouses or clean out or preserve the navigation of harbors”. He discussed this with Nathaniel Gorham, Massachusetts, and Gouverneur Morris and Thomas Fitzimmons, delegates from Pennsylvania. Morris said, “The Congress could do so under the ‘General Welfare Clause”. McHenry was aware such an interpretation would allow Congress to grant trade monopolies which, Southern states rejected. Benjamin Franklin also sought to circumvent the restrictive nature of the general welfare. He proposed the words “to provide for cutting canals where deemed necessary” be added after the words “post roads” in Article 1, Section 8, Clause 7. James Wilson, and the rest of the Pennsylvania delegation, supported this motion. Considering Philadelphia was a major trading port, their self-interest was obvious. Roger Sherman, Connecticut, opposed this change noting, “The expense in such cases, will fall on the United States, and the benefit accrue to the places where the canals may be cut”. Wilson countered that Sherman was not only wrong but his restrictive construction of the term constituted an obstruction of the general welfare. Rufus King of Massachusetts, a state with the important port Boston, saw the larger picture and came to Sherman’s defense. He noted Wilson’s interpretation of general welfare meant government would have authority to establish banks, build roads, and erect commercial monopolies “that would sharply divide the states”.7 Delegates voted Franklin’s proposal down. King’s comment was a foreshadowing of backroom deal making. Politicians call it “log-rolling”. Coastal states obtain federal funding for projects appropriate to their geography by supporting funding for projects in land locked regions. The general welfare prevented such practices.8 Consolidators did not give up.
Gouverneur Morris continued to insist the general welfare should allow the general government to build docking piers (infrastructure) in port city harbors. He told McHenry and Gorham delegates should promote this interpretation. “McHenry was horrified by the implication of so broad an interpretation of the clause”. Morris attempted to alter the meaning of general welfare through subterfuge. As principle penman for the Committee of Style, he wrote the Constitution’s draft. When he penned Article 1, Section 8, he “itemized the powers of Congress in clauses, separating them by semicolons. He inserted one between “To lay and collect taxes, duties, imposts, and excises’ and the qualifying ‘to pay the debts and provide for the common defense and general welfare”.9 A semicolon is a “punctuation mark; used chiefly in a coordinating function between major sentence elements (as independent clauses of a compound sentence)”.10 Morris’s alteration would have turned general welfare from a dependent phrase into a stand-alone clause transforming a restrictive into a “positive grant of power”. Congress could then do whatever it wanted. Roger Sherman caught Morris’s trick, brought it to the Convention’s attention, and they directed a comma replace the semicolon.11
Instead of a clause, the general welfare is a dependent or subordinate phrase, a distinction with a difference. Clauses are a “Collection of words that has a subject that includes an active verb”.12 An independent clause “can stand on its own” [contains both a subject and a verb] and “it does not need to be joined to any other clauses because it contains all the information necessary to be a complete sentence”. In addition they; 1) have a subject which tells the reader what the sentence is about, 2) have an action or predicate [verbs that explain or tell what the subject is doing], and 3) express a complete thought, something that happened or was said.13 A phrase is a “collection of words that may have nouns or verbals [nouns-words that name. Verbs/verbals-words that do or are].14 Dependent or subordinate phrases do not complete a thought and cannot stand-alone. For example, the words “general welfare” to a reader mean nothing. For a clause or sentence to stand-alone, it must contain a word or group of words acting as a noun and is the main-focus of the sentence.15 A phrase cannot stand-alone otherwise; it is a sentence fragment, “and is considered one of the worst writing errors one can make”.16 What does all this mean?
The general welfare is a phrase dependent on and attached to the common defense and the enumeration of powers that follow. This enumeration defines the general welfare. Infrastructure is not among the powers listed. The taxation authority of the U.S. government is limited to the common defense and enumerated powers. The federal government has no authority to appropriate money to build roads, bridges, canals, and so forth. To do so would improve the welfare of a specific area, not the nation and thus delegates rejected delegating this power to the federal government.17
When the Convention first presented the proposed Constitution to delegates in Philadelphia, the words “common defense” and “general welfare” were absent. A motion to add them was defeated. Delegates grounded objections on the fact that since Article 1, Section 8, the enumerated powers, constituted the common defense and general welfare, these words were redundant. In addition, delegates who supported a federal as opposed to national system of government, contended consolidationists would twist the meaning of general welfare to expand federal power beyond its enumeration. Roger Sherman noted these words applied to very few “objects” limited to protecting the nation from foreign powers and insurrection.18 South Carolina delegate David Ramsey agreed the Constitution confined the powers of Congress to providing for the common defense and general welfare. To raise money for any other purpose, including internal improvements (infrastructure) was illegal as those were among the reserved powers belonging to the states. Upon this understanding, delegates added the words when the Convention closed in September 1787.19
Criticisms by opponents of the proposed Constitution compelled proponents to defend and explain its problematic parts. They did this through newspaper editorials, essays, and the Federalist Papers. Madison and Hamilton, to a greater degree, were nationalists. Both considered the Articles of Confederation an impediment to creating an American nation. Both supported a national as opposed to a federal system of government. However, they understood states would not support the former because it meant relinquishing state sovereignty. Hence, they supported the proposed Constitution as a first step toward a larger goal. They conceded the general welfare did not authorize Congress to fund infrastructure. Common sense dictated states fund their own projects.20
Anti-Federalists claimed the general welfare “clause” (sic) constituted an unlimited delegation of power to the general government. James Madison addressed this in Federalist 41. He noted Article 1, Section 8, and its 18 sub-clauses comprised the sole meaning of general welfare. The list was restrictive. Congress has power to tax, borrow, and spend only for what is on the list. Most of the list comprise actions relative to the military, foreign commerce, and war.21 In Federalist 45, Madison wrote; “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State”.22 Madison provides a concise explanation of America’s republican form of limited government and federalism. Hamilton could not help but show his true colors.
Writing in Federalist 30 and 34, Hamilton insisted the federal government’s ability to acquire revenue and spend had to be commiserate with challenges it faced especially with respect to the machinations of foreign powers. Because no one could predict the future, government’s power to tax and spend should be untethered from limits imposed by Article 1, Section 8. It was logical Congress have the power to tax and spend on any project it deemed for the general welfare.23 Jefferson and Madison corrected Hamilton noting the purpose of the enumeration was to limit Congress’s application of the meaning “general welfare”.24
Future Chief Justice of the United States, John Marshall, ardent nationalist, and enemy of state rights, nevertheless defended ratification at the Virginia Convention. He conceded an enumeration limited the powers of Congress. It had no authority to pass laws beyond that enumeration and, if it did, judges would strike them down as “void” and unconstitutional.25 Anti-Federalists were unconvinced. A critic writing as “Brutus” insisted Consolidationists would use the general welfare to transform the federal into a national form of government.26 The vote to ratify the proposed Constitution was unanimous in only three of thirteen states and was close in five others.27 Tenche Coxe, Pennsylvania delegate wrote the states had not delegated to the federal government power to involve itself in the construction and operation of buildings and canals in the States or to subsidize such ventures. Had this not been the case, the States would never have ratified the Constitution. Delegates later added the Tenth Amendment to make clear all powers the States had not delegated to the federal government, they reserved to themselves.28 This issue was bound to come up again.
In 1794, members of Congress proposed allocating federal funds to resettle French refugees from Haitian slave revolts in Baltimore and Philadelphia. Maryland Congressman Samuel Smith argued such an appropriation was constitutional. Virginia Congressman James Madison opposed the bill on constitutional grounds observing, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress for expending on objects of benevolence, the money of their constituents”.29 Virginia Congressman John Nicholas agreed with Madison. He proposed, instead, colleagues raise funds through a “private subscription”. Attempting to shame him, Smith said if Nicholas beheld the misery and suffering of the French refugees, he would never have made such a proposal. Backers of the bill said no money would come from the public treasury. Instead, they would subtract the amount of the appropriation from the debt the U.S. owed France from the war.30 Like lawyers then and now, they do not have to be right only have the better sounding argument.
Congressman Madison was President Madison in 1817. Congress submitted to him a bill for “internal improvements”, an appropriation for roads and canals. He vetoed it because it was unconstitutional. Madison observed in his veto message that the States delegated no authority for internal improvements to the federal government in Article 1, Section 8. Any other interpretation would mean Congress had the power to do whatever it wanted.31
Thomas Jefferson explained in a letter to Albert Gallatin, Secretary of the Treasury, (1822) that President James Monroe had “negatived” [vetoed] an “act for internal improvement” passed by Congress. The bill’s supporters claimed authority to tax and spend for any purpose they considered the general welfare. Jefferson countered that Congress did not have unlimited powers to “provide for the general welfare but were restrained to those specifically enumerated”. It was through the exercise of that finite list of powers Congress provided for the “general welfare” and the same applied to taxing, borrowing, and spending. Jefferson believed it was fortunate the bill was passed because Monroe’s veto would “settle forever the meaning of the phrase, which, by a mere grammatical quibble” [semicolon] at the end of each list or subsection, had been used by the so-called Federalists, to expand the powers of the federal government at the expense of the State’s reserved powers. “It is a mere question of syntax, whether the two last infinitives are governed by the first or are distinct, and co-ordinate powers; a question unequivocally decided by the exact definition of powers immediately following”. In his veto message of the appropriation for the Cumberland Road, Monroe asked, “Have Congress a right to raise and appropriate the money to any and 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”.32
Although dead some 24 years, Hamilton’s philosophical successors continued working to undermine the restrictive nature of the general welfare phrase by introducing bills for internal improvements. South Carolina Congressman William Drayton declared, “Hamilton’s view would make a mockery of the doctrine of enumerated powers, the centerpiece of the Constitution, rendering the enumeration of Congress’s powers superfluous. Whenever Congress wanted to do something it could simply declare the act to be serving the ‘general welfare’ and get out from under its limits imposed by enumeration”. What would be the sense of an enumeration if, by invoking the general welfare, Congress could violate any restrictions placed on its power by the Constitution?33
One hundred years after delegates in Philadelphia signed the Constitution, President Grover Cleveland vetoed the Texas Seed Bill a drought relief measure, because it was unconstitutional. He asked rhetorically, “If government supports the people, who will support the government”? It has no wealth and produces no goods. It can enlarge its role in the lives of people only by taking more of what they earn and produce reducing their freedom and prosperity in equal measure.34 He wrote in his veto message:
“I can find no warrant for such an appropriation in the Constitution,
and I do not believe that the power and duty of the General Government
ought to be extended to the relief of individual suffering which is no
manner properly related to the public service or benefit.
A prevalent tendency to disregard the limited mission of this power and
duty should, I think, be steadfastly resisted, to the end that the lesson
should be constantly enforced that, though the people support the
Government, the Government should not support the people”.
Cleveland consulted the Constitution to determine if the proposed action was legal. It was not. Presidents like Cleveland, and later Calvin Coolidge, became the exception. Congressmen continued proposing bills violating the meaning of general welfare. Presidents from Theodore Roosevelt, Woodrow Wilson, and Herbert Hoover participated in undermining federalism, the basis for a government of limited powers. Franklin Roosevelt turned a drip into a flood.
Although the Supreme Court in United States v. Butler (1936) struck down Franklin Roosevelt’s Agricultural Adjustment Act, it nevertheless held that under Article 1 of the Constitution, Congress had broad powers to tax and spend for whatever it deemed the general welfare of the nation, what Hamilton always wanted. Looking back in 1945, Chief Justice Owen Roberts observed that this case decided the long-standing debate between Hamilton and Jefferson over a loose versus strict construction of the enumerated powers and general welfare in favor of Hamilton.35 Although many more decisions to come drove the final nails into its coffin, on that day the Constitution died overthrown by nine men.
The States created a federal system of government. To it, they delegated power over international affairs, treaties, war, peace, and trade. States reserved all other powers to themselves. They prohibited federal involvement in any form of internal improvement. This would include dredging Boston Harbor, building bridges in Minnesota, constructing flood levies in Missouri, subsidies for Amtrak in NYC, a dam in Arizona, windmill farms in California, aid to indigent in Oregon, and farmers in Iowa, all of which it does. “The central government does not exist to provide a paycheck, a job, a road, healthcare, charity for the indigent, or a minimum wage”. The Founder’s acceptance that these are the responsibilities of states and individuals was universal. They would “not have viewed the transfer of responsibility from individuals to the government as a sign of progress”.36
Republican Senators Roy Blunt and Marsha Blackburn, Missouri and Tennessee respectively, support infrastructure projects, roads, bridges, and internet access, but not the Democrat’s bill.37 Today neither Democrats nor Republicans debate the Constitutionality of their acts especially infrastructure bills. Instead, they quibble over cost. They have abandoned federalism, the principle of limited government, and the Constitution. The liberty, property, and even lives of Americans cannot be safe under such a tyrannical form of government. When people say, “Well, at least we live in a free country” and “Land of the free, home of the brave” I shake my head at such ignorance. Like an over the hill actor, they are living on a past reputation that died a long time ago.
11 Calvin Coolidge, Foundations of the Republic: Speeches and Addresses (Freeport, N.Y., Books For Libraries Press, 1926/1968), 122.
22 Boris Pasternak, translation by Manya Harai and Max Hayward, Doctor Zhivago (New York, N.Y., Everyman’s Library, Alfred A Knopf, 1958/1991), 15.
33 Brion McClanahan, The Politically Incorrect Guide To the Founding Fathers (Washington, D.C., Regnery Publishing, Inc., 2009), 77.
44 Brion McClanahan, The Founding Father’s Guide to the Constitution (Washington, D.C. Regnery Publishing, Inc., 2012), 38.
55 Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Kansas, University Press of Kansas, 1985), 264-265. The Latin phrase means “New Order of the Ages” and appears on the reverse of the Great Seal.
66 McClanahan, Politically Incorrect Guide, 78.
77 McClanahan, Founding Fathers Guide, 55-58.
88 Richard J. Hardy, Government In America (Boston, Massachusetts, Houghton Mifflin Company, 1992), 355.
1010 Frederick C. Mish, Editor-in-Chief, Merriam Webster’s Collegiate Dictionary, Tenth Addition (Springfield, Massachusetts, Merriam-Webster, Inc., 2001), 1060.
1414 C. Edward Good, A Grammar Book For You And Me (Sterling, Virginia, Capital Books, Inc., 2002), 8-9, 30-33.
1818 McClanahan, The Founder’s Guide, 43.
2020 McClanahan, The Politically Incorrect Guide, 78-79.
2121 Alexander Hamilton, John Jay, and James Madison, The Federalist Papers, Clinton Rossiter, editor (New York, N.Y., A Mentor Book for the New American Library, 1961), 262-263.
2323 IBID. 189-193, 205-211.
2626 Herbert J. Strong, Editor, selected by Murray Dry from The Complete Anti-Federalist, The Anti-Federalist: Writings by the Opponents of the Constitution (Chicago, Illinois, The University of Chicago Press, 1981/1985), 166-174.
2828 McClanahan, Founding Father’s Guide, 59, 171, 179.
2929 National Archives, “Santo Domingan Refugees, 10 January 1794” Founders Online, National Archives at https://founders.archives.gov/documents/madison/01-15-02-0017. Original source is Thomas A. Mason, Robert A. Rutland, and Jeanne K. Sisson, editors, The Papers of James Madison, Vol. 15, 24 March 1793-20 April 1795, (Charlottesville, Virginia, University Press of Virginia, 1985), 177-179.
3131 Clarence B. Carson, Basic American Government (Wadley, Alabama, American Textbook Committee, 1996), 48.
3232 Martin A. Larson, The Essence of Thomas Jefferson (New York, N.Y. Joseph J. Binns, Publisher, 1977), 145-146. From Thomas Jefferson, The Writings of Thomas Jefferson (Washington, D.C., Taylor & Murray, 1854), Volume VII, 17-86 to Albert Gallatin, 16 July 1817, 78-79.
3333 Roger Pilon, CATO Handbook for Congress (Washington, D.C. CATO Institute, 1999), 28-29.
3434 Clarence B Carson, A Basic History of the United States, Volume 5: The Welfare State 1929-1985 (Wadley, Alabama, American Textbook Committee, 1987), 1.
3535 Legal Information Institute. The Court held, in a 6-3 vote, federal funding for agriculture in states was legal but federal management was not.
3636 McClanahan, The Politically Incorrect Guide, 79.
