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Thursday, March 10, 2011

General Misunderstandings – Tenth Amendment Center

General Misunderstandings – Tenth Amendment Center

by Michael Maharrey

Paul Abrams trotted out one of the favorite progressive arguments for virtually unlimited federal power in a March 9 Huffington Post article.

The good ole’ “general welfare” clause.

Abrams brings quite an academic pedigree to the party. Yale educated, summa cum laude, multiple advanced degrees…which goes to show an Ivy League education doesn’t necessarily guarantee a student will actually graduate knowing anything.

OK, perhaps that’s a bit harsh. He may be a fine lawyer and an excellent medical doctor, but a constitutional scholar – not so much.

Abrams’ argument goes like this.

Article 1, Section 8, Clause 1 grants the United States government the unqualified and unlimited power to raise and spend money, for example, to: provide healthcare for the elderly (or for everyone); provide old-age pension; build roads, bridges, train tracks, airports, electric grids, libraries, swimming pools, housing; educate our children, re-train the unemployed, provide pre-school and day care; fund public health projects; invest in and conduct basic research; provide subsidies for agriculture; save the auto industry; create internets; and, yes, Tea Party Senator Mike Lee (R-UT), even provide emergency aid from natural disasters, and so forth. All subsumed under the authority to spend for the general welfare.

This raises a couple of interesting questions.

First off, if the very first clause of Article 1 Sec. 8 grants unlimited and unqualified authority for the federal government to do any damn thing it wants, why did the framers bother to waste ink enumerating all of those other powers? I mean, they were handwriting the thing for goodness sake. Seems to me an economy of words would have definitely been in order.

Secondly, how in the world can you square Abrams’ view of “general welfare” with James Madison’s assertion in Federalist 45 that the powers granted to the federal government are “few and defined”?

Oh yeah, you can’t.

And Madison didn’t.

In fact, the “Father of the Constitution” actually addressed this very argument.

“With respect to the two 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.”

You can look to the ratifying conventions for those proofs. In fact, the “anti-federalists” feared that people like Abrams would come along and make the very arguments he advances. The pro-constitutionalists assured them this wouldn’t happen – that the government powers were in fact limited and defined. The states ratified the Constitution based on these assurances.

Heck, even Alexander Hamilton, who was most hostile to the concept of limiting federal power, conceded as much.

“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”

Thanks for answering that first question for me, Alex.

Abrams’ runs into trouble because he doesn’t understand what the framers meant by “general welfare” and “common defense”. The first words of those two phrases hold the key. General and common. The phrase simply means that any tax collected must be collected to the benefit of the United States as a whole, not for partial or sectional (ie. special) interests. You know, swimming pools, health care for the elderly, and internets. (I don’t know what internets are. Ask Abrams.)

The power to pursue the things Abrams advocates lies with the states. As Madison put it:

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.

After Abrams wields the “general welfare” clause like a sword, slashing through the ignorant misconception that the framers actually intended a federal government with limited powers, he pulls out the “necessary and proper” clause for good measure.

Otherwise known as the “necessary and proper clause”, the 18th power makes it as clear as the Supreme Court Justice’s financial disclosure rules that the Congress has the authority to enact any law to spend money in pursuit of the general welfare.

Perhaps it’s due to my lack of an Ivy League education, but I have absolutely no idea what exactly Abrams means by this sentence, or how he arrived at his conclusion. But I do know that Thomas Jefferson made it clear enumerated powers also constrain the meaning and scope of the necessary and proper clause.

“The Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient,’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed”

If nothing else, Abrams vividly illustrates Jefferson’s point. For what he may lack in understanding of the original Constitution he certainly makes up for in using his ingenuity to torture into a convenience many instances.

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of '98 - Kentucky. See his blog archive here and his article archive here. He also maintains the blog, Tenther Gleanings.

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