General Welfare.

See this.

Second (third?) thoughts on Article I, Section 8, Clauses 1 and 18

Even if we understand the grant of power on this reading of clause 1 to be qualified by limitations placed on the general government elsewhere in the constitution such as, just as an example, the Bill of Rights, it remains rather sweeping.

And so the best objections to this reading are (1) that it grants such otherwise unlimited power to the national government and (2) that it is refuted by the very existence of the other clauses in Section 8, since that proves its authors did not understand clause 1 in this breathtaking way.

And so, though it makes me miserable to say so, I think the weak reading of these clauses congenial to conservatives and libertarians has to be accepted, after all.

So I take all of the following back.

If the congress is empowered to raise taxes for certain purposes then surely it is empowered by implication to undertake those purposes.

I, 8, 1

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;

Now, the text does not actually say the following.

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 so far as these last may be done through the exercise of powers granted elsewhere in this constitution; but all Duties, Imposts and Excises shall be uniform throughout the United States;

That interpolated restriction is pure invisible ink.

. . . .

So what we have here in the constitution as written is in fact an explicit grant of power to collect taxes for three purposes, and an implied grant of power to undertake those same three purposes: to pay the debts, to provide for the common defense, and to provide for the general welfare of the United States.

Those three, then, stand alongside the other powers of the congress enumerated in Section 8, rather than being limited by them or other constitutional powers of that body.

That claim is exactly what I am taking back.

But I stand by my assertions regarding the implications of that claim.


But the congress also has power to do anything necessary and proper to carry out any undertaking under its legitimate powers.

I, 8, 18

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.

On this reading, the entire progressive, New Deal, Great Society agenda is constitutionally legitimate and would have been at any time since 1788, though at least some of the Framers (not all) would have been aghast to realize what they had countenanced.

Too, we may take "and proper," I think, to at least mean consistent with limitations elsewhere expressed in the constitution.

A more narrow reading might be getting a little too much into invisible ink.

None of this goes any distance to legitimate any of the constitutional creations based on the 14th Amendment or the fiction of incorporation.

But it does, I think, legitimate the Air Force, paper money, and a lot besides.


And Obamacare, in particular, including its mandatory purchase provisions.