Whatever Became of the General Welfare?

Editorials are supposed to provide answers, but this week all we have for you is questions. What in the name of heaven has happened to (1) this country and (2) this generation?

In the not too distant past, it was assumed by almost everyone that providing respectable free public education was a central responsibility of government. Not only that, it was taken for granted that citizens would pool their resources using the tax system to provide parks both national and local, art museums, swimming pools, zoos—you name it. When I was growing up in St. Louis and California we had all those amenities and more.

Now the concept introduced in the preamble to the Constitution of “promoting the general Welfare” seems to have evaporated, or at least shrunk to unrecognizable dimensions. This is not a Liberal vs. Conservative or Democrat vs. Republican question: It’s much broader than that, and much more serious.

Book after book has been published in the last few years exploring the question of what’s wrong with America these days. Two notable ones are Thomas Frank’s What’s the Matter with Kansas? and Joe Bageant’s Deerhunting with Jesus, both essentially efforts to explain how working class stiffs vote to the Liberal Elite. But the LE is part of the problem.

What are the majority of Democrats in the U.S. Congress if not card-carrying members of the liberal elite? And yet, didn’t most of them accede, fairly easily, to the “solution” to the budget deadlock of sacrificing the interests of the working poor on behalf of compromise? Independent Senator Bernie Sanders lays it out: “At a time when the gap between the very rich and everybody else is growing wider, this budget is Robin Hood in reverse. It takes from struggling working families and gives to multi-millionaires. This is obscene.”

Why was the military budget left untouched? Today there are hints that President Obama might take a cursory look at that area, but don’t count on it.

And let’s look at what’s happened to what used to be called conservatives. Time was when conservatives (think Everett Dirksen or even Barry Goldwater) pinched pennies across the board, not just in programs which benefited poor people. Republicans used to be people who believed in personal rather than government-funded good works, but they did believe in some notion of contributing to the common good.

In my neighborhood in Berkeley, like all Berkeley neighborhoods, there are mighty few registered Republicans. But the ones there were used to be model citizens. A couple around the corner lavished weeks of personal backbreaking work on the elementary school playground, and we used to say about them that if everyone did things like that government would be indeed made obsolete. Didn’t happen.

In the old days even Republicans paid taxes willingly. My father was a registered Republican until the day he died, though he hadn’t voted for a Republican candidate for a couple of decades—he kept hoping that the party of Senator Kuchel would come back, but it never did. He paid his taxes scrupulously, voted for school levies, the whole ball of wax. Now even registered Democrats in Berkeley have been heard to say that they won’t vote to spend money for schools because they don’t have children in school. Whatever happened to the general welfare?

The disgraceful spectacle in Wisconsin, where rank and file public service workers have been portrayed as villains, is another manifestation of total disregard for the proper functioning of government. There’s a little room for criticism of the disparity in salaries among government executives (think U.C. chancellors) and government workers (think U.C. housekeepers), but none of them even remotely approaches the compensation of the plutocrats who run large tax-avoiding corporations and financial conglomerates.

Elsewhere in this issue you’ll learn that the Chevron corporation has coughed up about $100,000 to contribute to the education of three students over four years in the trendy “STEM” (science, engineering, technology, mathematics) disciplines. It’s pitched as such a big deal that Secretary of Energy and U.C. prof Steven Chu posed for a photo op with a Chevron executive to accompany the release.

That’s just dandy, but how does it stack up against Chevron’s record of exploiting and promoting tax loopholes? On March 27 Senator Sanders revealed that “Chevron received a $19 million refund from the IRS last year after it made $10 billion in profits in 2009.” In that league, $100k is chump change, and we’re the chumps if we believe it makes a difference.

It’s been widely reported that “the richest 1 percent account for 24 percent of the nation's income.” A corollary assumption is that the richer some people get, the less likely they are to contribute to public amenities.

Why vote for swimming pool bonds when you can pay for access to the swimming pool at the Claremont Hotel, or even at the YMCA, which is out of reach of many in Berkeley? Significantly, the city of Richmond, which is not the posh bedroom community which Berkeley has become, has just finished restoring the wonderful public pool known as the Richmond Plunge with the benefit of a fundraising campaign which reached many small local donors.

On the other hand, the city of Piedmont, a wealthy enclave carved out of the Oakland Hills, has never felt it needed to support a public library. Recently, it’s even decided not to contribute to the Oakland Public Library, which Piedmont citizens have used in the past, presumably because between online information access and Amazon well-to-do Piedmonters don’t need libraries at all any more.

In the Gilded Age around the turn of the last century, some few members of the ruling plutocracy did take responsibility to a certain extent for the common good. Teddy Roosevelt promoted conservation in general and national parks in particular. Now there are few Teddy Roosevelts around, though a few rich guys like Bill Gates in retirement are making something of an effort, prodded, one hears, by his old-school Republican father. But there’s a notable absence of what used to be a widespread belief, that through the tax system the better-fixed citizens funded public benefits for the good of all.

Back to the question: why should this be so? Is the problem that the “me generation”—whatever that is or was—is now in power and is completely self-centered? Is it because the media has nourished the sense of victimhood associated with paying taxes, even though taxes on the very rich have never been lower? If you have any ideas, let us know.

What powers are granted to Congress by the 'General Welfare' and the 'Necessary And Proper' clauses of the Constitution?

THESIS

The US Constitution's purpose is firstly to explicitly specify what the Federal government is permitted to do. Its primary method of doing that is by positively stating what is allowed. It was the intent of those who drafted it at the Constitutional Convention that it be understood that whatever was not explicitly allowed was prohibited. That's why the original version, before the Bill of Rights, contained few explicit prohibitions limiting the action of the government. Not only did the Framers see such prohbitions as unnecessary in the absence of any language that authorized those actions (e.g., criminalization of speech,) they feared that any explicit enumeration of what the government was prohibited from doing would wrongly be taken as exhaustive; that whatever was not explicitly prohibited would be wrongly claimed as allowed. History shows they were absolutely right to have that fear. That's why explicit limitations on government power are secondary, and mostly occur in the Bill of Rights, which were added as Amendments after ratification of the original Constitution. Most of the powers of Congress to pass laws--including laws that authorize the spending of government funds from the Treasury, are explicitly enumerated in Article I, section 8. The power to change the law, and to make new law is granted to Congress. Congress and the States are separately granted the power to change the Constitution by amending it, using a formal amendment procedure. No such power is granted to any Court. There would be no need or reason for the amendment process, were it true that the Founders ever intended that Courts and legislatures change the meaning of the Constitution in any other way than by the amendment procedure.

Constitutions are modeled after contracts and charters, and when invented they were intended to be used, interpreted and enforced according to the same principles. That's a matter of undeniable historical fact. Therefore, the requirement is to interpret the Constitution as any contract or charter would be: As it was written, according to the semantics of the words as they would have been understood by those who wrote and ratified them. Changes must be made my amendment. To allow informal changes would be to subvert the informed consent of the governed, to subvert the principles of democracy, and to impose a tyranny by judges. There is no more foundational or important principle in the Constitution than the fact that it creates and charters a republic whose powers are strictly limited to those defined and enumerated. That was the key, foundational point argued in the Federalist Papers, which were the principal vehicle by which the Constitution was marketed and sold to the nation in order to achieve ratification. Any grant of a general power to do whatever may be politically deemed to be in the public good ("general welfare") would make a mockery of the concept of powers limited to those enumerated, and would render the careful and considered enumeration of the other powers superflous and unnecessary. Consequently, the 'General Welfare' and 'Necessary And Proper' clauses were clearly intended as ADDITIONAL constraints on the power of the government, and not as grants of general powers above and beyond those explicitly enumerated. The intended meaning of those clauses it that laws passed by Congress must not only be justified by those powers explicitly granted, they must also ADDITIONALLY be justified as necessary and proper (rightful, not morally wrong) in order to exercise the powers granted; and they must ADDITIONALLY be justified as promoting the general welfare of the country and its residents. To claim otherwise is both historically false and intellectually dishonest.

PROOF:

Alexander Hamilton, Federalist #84 (http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss7.html):

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

Hamilton wrote those words as part of what history now calls The Federalist Papers, which served as the explanation of what the Constitution meant that the people (and State Legislatures) used at the time in order to understand what they would be agreeing to if they decided to ratify the Constitution.

You should also be aware that, relative to the other Founders, Alexander Hamilton had a VERY expansive view of the powers granted to the Federal Goverment by the Constitution. He was in favor of a National Bank, and thought the Constitution granted the power to create and operate one. Many other prominent Founders strongly disagreed on that point.

Neverthelss, in the above quote from Federalist #84 Hamilton clearly states that the architecture of the Constitution is that whatever power is not explicitly granted is denied. He also clearly denies any possibility that the General Welfare and Necessary And Proper clauses grant any power to regulate, let alone criminalize speech, since he believes that even without a First Amendment, the Federal government is not granted any such powers. (The power to regulate and the power to criminalize are NOT the same thing, by the way.)

Here's what Thomas Jefferson had to say on the same subjects:

"The construction applied... to those parts of the Constitution of the United States which delegate to Congress a power "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," and "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof," goes to the destruction of all limits prescribed to [the General Government's] power by the Constitution... Words meant by the instrument to be subsidiary only to the execution of limited powers ought not to be construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:385

"They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please... Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers and those without which, as means, these powers could not be carried into effect." --Thomas Jefferson: Opinion on National Bank, 1791. ME 3:148

"Our tenet ever was... that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money." --Thomas Jefferson to Albert Gallatin, 1817. ME 15:133

"If, wherever the Constitution assumes a single power out of many which belong to the same subject, we should consider it as assuming the whole, it would vest the General Government with a mass of powers never contemplated. On the contrary, the assumption of particular powers seems an exclusion of all not assumed." --Thomas Jefferson to Joseph C. Cabell, 1814. ME 14:83

‎"I hope our courts will never countenance the sweeping pretensions which have been set up under the words 'general defence and public welfare.' These words only express the motives which induced the Convention to give to the ordinary legislature certain specified powers which they enumerate, and which they thought might be trusted to the ordinary legislature, and not to give them the unspecified also; or why any specification? They could not be so awkward in language as to mean, as we say, 'all and some.' And should this construction prevail, all limits to the federal government are done away." --Thomas Jefferson to Spencer Roane, 1815. ME 14:350

The man who was the principal author of both the original Constitution, and the Bill of Rights, was James Madison. He later became President. And as President, he vetoed a bill precisely because it called for the spending of money for a purpose not explicitly listed in Article I, section 8. It is instructive to read the letter he sent to Congress explaining his veto: http://www.constitution.org/jm/18170303_veto.htm

In the lst article, 8th section, it is declared, “that Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense, and general welfare of the United States.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defense, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defense, and general welfare.” And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper. It is true the 9th section restrains their power with respect to certain subjects. But these restrictions are very limited, some of them improper, some unimportant, and others not easily understood, as I shall hereafter show. It has been urged that the meaning I give to this part of the constitution is not the true one, that the intent of it is to confer on the legislature the power to lay and collect taxes, etc., in order to provide for the common defense and general welfare. To this I would reply, that the meaning and intent of the constitution is to be collected from the words of it, and I submit to the public, whether the construction I have given it is not the most natural and easy. But admitting the contrary opinion to prevail, I shall nevertheless, be able to show, that the same powers are substantially vested in the general government, by several other articles in the constitution. It invests the legislature with authority to lay and collect taxes, duties, imposts and excises, in order to provide for the common defense, and promote the general welfare, and to pass all laws which may be necessary and proper for carrying this power into effect. To comprehend the extent of this authority, it will be requisite to examine

1st. What is included in this power to lay and collect taxes, duties, imposts and excises.

2nd. What is implied in the authority, to pass all laws which shall be necessary and proper for carrying this power into execution.

3rd. What limitation, if any, is set to the exercise of this power by the constitution.

First. To detail the particulars comprehended in the general terms, taxes, duties, imposts and excises, would require a volume, instead of a single piece in a newspaper. Indeed it would be a task far beyond my ability, and to which no one can be competent, unless possessed of a mind capable of comprehending every possible source of revenue; for they extend to every possible way of raising money, whether by direct or indirect taxation. Under this clause may be imposed a poll tax, a land tax, a tax on houses and buildings, on windows and fireplaces, on cattle and on all kinds of personal property. It extends to duties on all kinds of goods to any amount, to tonnage and poundage on vessels, to duties on written instruments, newspapers, almanacks, and books. It comprehends an excise on all kinds of liquors, spirits, wines, cider, beer, etc., and indeed takes in duty or excise on every necessary or conveniency of life, whether of foreign or home growth or manufactory. In short, we can have no conception of any way in which a government can raise money from the people, but what is included in one or other of these general terms. We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States, Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy. It opens a door to the appointment of a swarm of revenue and excise collectors to prey upon the honest and industrious part of the community, [and] eat up their substance. . . .

BRUTUS

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