The Truth About the Welfare Clause
Unconstitutionally giving away other people’s money
There’s a common misunderstanding about the “general Welfare” phrase in the U.S. Constitution. Frequently the phrase is used to justify the federal government doling out cash and goodies to individuals in favored groups and particular situations. A 2018 letter to the editor titled “The US Constitution favors the liberal left” is a prime example of this misunderstanding. The claims of this letter are common, persistent, and wrong. Pulling its claims apart is a useful exercise, and doing so reveals that the Constitution actually does the opposite of “favoring the liberal left” on social welfare programs.
The letter claims that federally-funded social welfare programs are constitutional because the Constitution’s preamble includes the phrase “promote the general Welfare.” The argument is that federal programs funding food stamps, unemployment insurance, “public” education, and student loans are authorized by this language in the preamble, and even that this alleged authorization makes social welfare programs “the very purpose of constitutional government.” All of this is completely false.
The preamble of the U.S. Constitution is a one-sentence introduction to the Constitution summarizing why the Founders established the document. The preamble includes “We the People of the United States, in Order to […] promote the general Welfare […]” and lists six reasons why the federal government was created by the states, establishing “this Constitution for the United States of America.” It ends with the key reason of securing “Liberty to ourselves and our Prosperity.”
Following the preamble, the U.S. Constitution contains seven articles, referred to as Article I – VII. Each article contains sections. Each section contains clauses.
The preamble by itself confers no power. It does not authorize the federal government to use taxpayer money to provide social welfare benefits to an individual based on a particular situation, because the preamble does not grant the federal government power to do anything. All powers are expressly delegated within the articles of the Constitution.
In contract law, a preamble is typically called “the recitals.” It is separate and non-binding, unlike terms in the agreement itself. It’s less a part of the agreement, and more simple background information to set context.
The letter to the editor is wrong – the Constitution’s preamble does not favor the liberal left. The purpose of the federal government is liberty, not social welfare. The preamble does not authorize any federal programs at all, including welfare programs.
In Article I, Section 8 (A1S8) of the Constitution, the phrase “general Welfare” again appears, in the section that delegates a specific list of powers to Congress. A1S8 Clause 1 includes “Congress shall have Power To […] provide for the […] general Welfare of the United States.” This is referred to as the “general welfare clause.”
The welfare clause authorizes Congress to enact legislation of general benefit to these united states. This power isn’t about individual persons, nor is it about individual states. General welfare is general in nature, not for specific individuals in specific situations.
The welfare clause authorizes Congress to use money collected by the federal government to fund programs of general benefit only. Each of the subsequent 16 clauses in A1S8 authorizes Congress powers for specific, limited purposes, each beginning with the word “To.” All expenditures authorized by the welfare clause are limited to the 16 specifically-listed power clauses. Examples are “To establish Post Offices” and “To raise and support Armies.”
A1S8 ends with a clause containing “To make all Laws” needed for “the foregoing Powers, and all other Powers vested by this Constitution.” This is not a blanket authorization for Congress to fund anything desirable by claiming it to be general welfare.
Expressly Delegated Powers
To claim the welfare clause in A1S8 delegates a power outside those listed is to claim there was no point in the founders providing any specific powers in their list. The list exists because the authorized powers are limited to the list. The principle is “the designation of one is the exclusion of the other” when an enumerated list is used in a legal contract. The Constitution is a compact – a legal contract between the states that ratified it – and the exclusion principle legally applies.
In “Constitution 101: The General Welfare Clause” Michael Maharrey wrote:
“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 (i.e. special) interests. The federal government may promote the general welfare, or common good, but it must do so within the scope of the powers delegated and without favoritism.”Michael Maharrey
Even Alexander Hamilton, one of the biggest advocates of central government power who signed the proposed Constitution in September 1787, wrote in Federalist #83: “an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.” Hamilton had proposed state governors be appointed by the president. Hamilton pushed for and got the first central Bank of the United States, creating the first central banking failure in these united states. Yet even he agreed what is authorized by the welfare clause is strictly limited to the listed powers of A1S8. Big Government Hamilton wrote it is “absurd” to think otherwise, in a document justifying why NY should ratify the proposed Constitution. NY joined the union believing the federal powers of the welfare clause were limited to the list.
Why include a list in A1S8 if the intent of the welfare clause was unlimited? The list is not examples of possible powers.
The delegates of the 13 independent states spent five months in Philadelphia during that hot summer in 1787 debating, refining, rewording, and finally agreeing on the proposed Constitution. On September 17th they submitted the document to the 13 individual states for ratification. Every word in it was carefully chosen. They defined the entire federal government in a document that takes one hour to read. Every word is intentional and every omission is intentional. To list “Post Offices” and “declare War” as specifically delegated powers of Congress while simultaneously believing Congress can fund a billion dollars of whatever “socially desirable” program it can dream up is absurd. Ludicrous!
The Founders spent a lot of their lives considering what is an appropriate and legitimate power to delegate to a general government in a union of sovereign states. They wrote it down. We can read it, and so can Congress. Message to Congress – it takes one hour to read your job description, please take a one hour break from campaign funding calls this afternoon and read it.
If the Founders believed the federal government should fund student loans and food for single moms with kids they would have listed them as a specific power in A1S8 back in 1787. There would be a Federalist Paper and/or an Anti-Federalist Paper arguing for or against such powers (hint: it would have been the latter, arguing against). The 13 states in their ratifying conventions would have debated these two proposed powers. The 13 legislatures would then each have agreed these two were a matter for the federal government to act upon, or they would have rejected the proposal, or they would have reluctantly accepted the mistake to get the union formed. We would then know why they accepted or objected from their ratifying documents. If opposed we would know why, and likely we would have documents presenting arguments why a future amendment was needed to fix the 1787 Constitution’s error.
The Founders included a way to handle their omissions via amendments, as defined in Article V. They never claimed they were infallible or that new unforeseen situations would not arise in the future. They provided a lawful way for the states to later assign the federal government a new power to fund student loans and food for single moms. These programs would require a new proposed amendment. A social welfare program could be constitutional – but only “when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.” None have been.
Does anyone really believe that the men who signed and ratified the Constitution had never heard of hungry kids and college, and simply forgot to list them? They knew about hunger and education in 1787.
All federally-funded social welfare programs are unconstitutional. Nothing in the Constitution’s preamble, in the welfare clause of Article I, or in the other articles delegates Congress authority to fund any social welfare program for subsets of citizens in particular situations. Such funding is not “general Welfare of the United States” as defined by the Constitution in A1S8. Every program is unlawful for violating the “Supreme Law of the Land” in Article VI. Congressional legislation is only supreme if it follows the Constitution by being “made in Pursuance thereof.”
When a federal welfare program isn’t listed in A1S8 it is unconstitutional. The 10th Amendment (10A) then reminds us the program is either “reserved to the States respectively, or to the people.” 10A reminds both Congress and us that the federal government has no powers not expressly delegated to it.
Delegation is a temporary assignment of authority from a higher power to a lower power. If something is not specifically listed in the Constitution, there is no authorized federal power for it. By using “reserved” in the legal contract the states retained such authority. All federal social welfare programs are either an individual state matter, or are reserved to the people for not being a legitimate government function at all.
Congress, the federal courts (including the Supreme Court), and the executive branch (including the President and all 3-letter agencies) have unconstitutionally stolen power reserved for either the states or the people. The action is referred to as a usurpation, where a power is usurped by the federal government.
Merriam-Webster defines “usurp” as “1(a): to seize and hold (office, place, functions, powers, etc.) in possession by force or without right.” Federal welfare programs are a usurped power – unconstitutional, unlawful. The only constitutional action Congress can take regarding an existing federal welfare program is to end all funding. The only constitutional action a president can take on a welfare program is to shut it down and fire every employee. The only constitutional action the Supreme Court (SCOTUS) can take regarding a federal welfare program is to offer the majority opinion that every program is unconstitutional.
Unconstitutional Federal Welfare Programs
Here is a handy list of 80+ unconstitutional federal welfare programs, totaling $839B. Every program violates the oath of office taken by every Congressman, President, and SCOTUS jurist. Want to cut Washington DC’s excessive spending down by about 25%? Eliminate all of these unlawful programs. I’d call that a good start at fixing DC, one step in the right direction toward liberty and following the Constitution.
An early attempted federal welfare story in an 1867 Harper’s Magazine article is about a proposal in Congress to give money to the widow of a military officer in the late 1820s. Two-term Congressman Davy Crockett reportedly stopped the bill on the House floor with his “Not Yours to Give” speech. Another early attempted welfare story is a proposal to give some of the firewood purchased for Congress to the D.C. poor during a cold winter, which was said to be stopped dead in its tracks by another Congressman’s speech on the limitations of the welfare clause. One can dream of a Congressman today doing the same.
Unfortunately, I don’t have a link to a video of these early 1800s House floor speeches, but the principle is sound and the examples are useful in understanding the limitations of congressional powers. No authority was delegated to give away taxpayers’ money or firewood to an individual citizen. Taxpayer money isn’t for individuals. Taxpayer firewood is only for keeping Congress warm when in session.
Senator Rand Paul used the reported “Not Yours to Give” speech of Congressman Davy Crocket in May 2022 to point out Congress has no delegated power to send $40B in cash and weapons to fund the war in Ukraine. Paul said, “yes, our national security is threatened, not by Russia’s war against Ukraine, but by Congress’ war on the American taxpayer […] I will vote no.” Unfortunately, the bill passed anyway. Few in Congress today care about the limits imposed by their job description in Article 1 of the Constitution.
When the federal government favors certain individuals at the expense of others by pretending it is legally in the charity business, we get corruption and endless bickering over who gets the handouts.
No, the U.S. Constitution does not favor the liberal left on general welfare programs – it does exactly the opposite. However, the Constitution does favor the liberal left in that there is no restriction on a state peacefully leaving the union and forming an independent, politically left, socially progressive liberal paradise with 80+ social welfare programs. I welcome the experiment!
A short version of the points of this article was originally published in 2018 as a letter to the editor in the “Stuart News” and on the Florida newspaper’s website. It was re-published on the Convention of States website that same year. This 2022 article contains the 2018 published version along with detailed explanations, backup links, and a solution as big as the problem – peaceful national divorce. This article is published with the permission of the author.