Skip to comments.Original Intent Of The "General Welfare" and "Necessary And Proper" Clauses
Posted on 10/24/2012 5:08:28 PM PDT by sourcery
Do The "General Welfare" And The "Necessary And Proper" Clauses Grant Congress Powers And Authorities That Are In Addition To The Other Enumerated Powers?
"It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it." ~ Marbury v. Madison, 5 U.S. 137
The interpretation of the General Welfare clause as a general grant of power separate from any of the others would cause most of Article I, section 8 to be "without effect." That alone destroys the argument that the General Welfare clause grants additional power to Congress instead of acting as a further restraint on how it uses the enumerated powers it is specifically granted. To interpret the General Welfare clause as a general grant of additional powers would render the explicit enumeration of powers that follow the General Welfare clause superfluous, since the scope of powers included in "for the general welfare" is far broader than that of the explicitly enumerated ones.
The General Welfare clause simply requires that, when Congress passes laws to regulate commerce (for example,) they must do so with the aim and effect of promoting the general welfare. It does not mean they can pass laws that promote the general welfare that don't qualify as an exercise of a granted power.
Were that not the case, the enumeration of specifically granted powers would have been completely unecessary, and could have been left out of Article I without any change to the powers granted to Congress. But that cannot be the correct interpretation, because one of the most revered and influential rulings in the history of the Supreme Court said that interpreting the Constitution that way was impermissible.
When Article I, section 8 enumerates the powers granted to Congress, there is only one sentence where Congress is granted any power to actually make any laws whatsoever:
"The Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
There is no other sentence in the entire text of the original Constitution that specifically grants Congress any authority to make any laws.
Yes, Article I does say "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." But the intent of those words is clearly not to grant Congress unlimited authority to legislate as they please, but rather to explicitly limit whatever law-making authority that the Constitution is granting so that it applies to Congress alone, and does not apply to either the President or to the Supreme Court. The words that limit the grant of legislative authority to Congress do not say what legislative powers are granted, only that whatever they are, they are granted to Congress—and by omission of any such grant of authority, are denied to anyone else.
Similarly, the grant to Congress of the authority to "regulate commerce" is not a grant of authority to do so by making any laws. Congress could "regulate commerce" in other ways, such as by making treaties, signing contracts with the states, or even by signing contracts with private parties.
It is only the "Necessary And Proper Clause" that actually grants Congress any power to make laws in order to pursue the ends it is authorized to pursue by the preceding enumeration of the powers that it is being granted in Article I, section 8. So the clear intent and effect of the "Necessary and Proper Clause" is to require that whenever Congress does pass any laws, those laws must be for the purpose of "carrying into Execution the foregoing Powers," must be "necessary" for that purpose," and must be "proper" (rightful) for that purpose.
That such is the intended meaning is made irrefutable by the text of the additional Amendments that grant Congress additional powers (some grant no additional powers.) Every single one of them that does grant additional powers includes a clause similar to the one included in the 26th Amendment (the last one ratified to date): "The Congress shall have power to enforce this article by appropriate legislation."
That fact conclusively proves that the grant of the power to seek a goal or an end, or to attempt to achieve a purpose, is separate and distinct from the power to make laws in order to pursue that end, goal, or purpose. Were that not the case, the additional clauses added to Amendments that specifically grant Congress the power to make laws in order to exercise or enforce the powers granted by the Amendments would be redundant. And an interpretation of the Constitution that makes entire numbered clauses redundant is "impermissible," according to Marbury vs. Madison.
So again, there is no way that the "Necessary and Proper Clause" was ever intended as a general grant of power beyond those that had just been explicitly enumerated. Had the "Necessary and Proper" clause been intended as a grant of additional authority instead of as a constraint on the laws that could be made pursuant to granted authorities, why bother enumerating any grants of authority at all?
For that reason, and also (independently) because of the precise wording used, the grant of the power to make laws that would be necessary and proper as a means to pursue the ends authorized by the Constitution could only have been intended as yet an additional restriction on the powers granted, so that to be Constitutional, the laws that Congress makes must not only be honest attempts to use a granted authority, must not also be for the general welfare, but must also be necessary for that purpose, and must also be proper (rightful.)
It is never "proper," never rightful, to violate the rights of individuals. Never. That means that the correct interpretation of the "necessary and proper" clause is that, although Congress may "build post roads," it may not kill people in order to do so, because that would not be proper (rightful,) no matter how "necessary" it might be in order to build a post road in some specific case. The same holds for any other individual right, and for any other granted power.
The foregoing interpretation of the Constitution is strongly backed by James Madison, one of the principal architects of the Constitution: James Madison: Veto of federal public works bill, March 3, 1817.
Outstanding. Thanks, sourcery, now we just have to spread the word.
Jacquerie this is worth a ping to your list.
Another point to emphasize is the “general” nature of the General Welfare Clause. It isn’t a special interest clause. Whatever is done must benefit America as a whole and not just a narrow market, state, regional or corporate purpose.
"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. If the words obtained so readily a place in the "Articles of Confederation," and received so little notice in their admission into the present Constitution, and retained for so long a time a silent place in both, the fairest explanation is, that the words, in the alternative of meaning nothing or meaning everything, had the former meaning taken for granted."
A good analysis and good sourcing such as you always produce.
“Cliff Note” version of answer to title question:
This is a great and most refreshing artical on the Former Federal constitution. It is such a shame that we are so reliant upon hand picked Federal employees in black robes to uphold such limits against the very masters that picked them.
I’m not sure how anyone expected such men to uphold any Constitution of law(limits). If they do have the final say they claim to have then the system was fatally flawed from the Get go.