Michael Hintze posted an update 4 months, 3 weeks ago
Article I, Section 8 of the United States Constitution contains two clauses that have given free reign, though the Founders had no such intent, to those who would expand beyond all recognition the powers of the national government. The first is in Clause 1 of Section 8, and is commonly referred to as the General Welfare Clause. It reads, “The 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; …” The second is found in the last Clause of Section 8, and is commonly referred to as the Necessary and Proper Clause. It reads, “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, …”
How are we to understand the meaning and import of these clauses more than 220 years after they were written and ratified? The first key to understanding the meaning of the clauses is to understand that the Founders viewed government as exercising fiduciary powers on behalf of those who elected its members. At law, a fiduciary has an affirmative duty to always act within the limits of the powers granted by the fiduciary’s principal. The Founders believed that public officials were fiduciaries and bound by the standards traditionally imposed on fiduciaries. Perhaps the most important of the obligations imposed upon fiduciaries is to obey any instructions given them, and consequently to honor any limits set to their power.
The second key is to be found in the doctrine of incidental powers. That doctrine gives an agent (a fiduciary) some discretion in how he carries out his duties. But, such discretion is limited in three ways. First, the agent can act only for the purpose of carrying out the principal powers granted. Second, actions taken under the doctrine of incidental powers have to be of the type either reasonably necessary to the enumerated powers or a customary way of exercising them. And third, incidental powers never include authority as important as the enumerated powers.
Given the two keys to understanding the Founders’ use of the (by some) questionable wording in the first and last clauses of Article I, Section 8 set forth above, we can proceed to an understanding of their proper meaning.
First addressing the General Welfare Clause, it is important to pay close attention to the exact wording and punctuation of the clause. Again, it reads, “The Congress shall have the power to lay and collect taxes, duties, imposts, and excises, …” That section grants Congress the power to tax. The clause goes on, “…to pay the debts and provide for the common defense and general welfare of the United States …” The second section of the clause sets forth the purposes for which Congress may use the power to tax. It is a limiting clause that sets boundaries around the power to tax. Congress may not tax for any purpose it chooses, it may only tax in order to pay the country’s debts, and to provide for the common defense and general welfare of the United States. Congress may not tax to raise money to defend only a part of the country, it must defend the whole country; nor may it tax to provide for the welfare of one part of the country at the expense or exclusion of another. For whatever purpose Congress taxes, the purpose must be general and not specific; it must apply to all, and not to some.
It should be clear from this analysis that most of the national government’s programs and policies are unconstitutional when considered in the light of a proper understanding of the Constitution’s grants of power to it. The General Welfare Clause is not, and was never meant to be, a general grant of power to the national government. It is instructive to remember that the Anti-Federalists made precisely that charge during the debates over ratification of the Constitution, and the Federalists stoutly and effectively denied that such was their intent. The American people are entitled to rely on the meaning of the clause as expounded by those who promoted and defended it. It is a fair presumption that the Constitution would not have been ratified if there had been general agreement among the ratifiers that the clause did grant a general and open-ended power to the national government. They had recently fought and won a war against just such unlimited power, they were not anxious to re-impose such a government upon themselves.
As to the Necessary and Proper Clause, the fiduciary nature of government to which the Founders subscribed provides the meaning understood by them. It meant that Congress had the incidental powers necessary to implementing the enumerated powers granted to it by Article I, but only those necessary to implementing those enumerated powers. No more than the General Welfare Clause, the Necessary and Proper Clause grants no additional primary powers to Congress or the national government. There is no unlimited grant of power; there are no unbounded fields of human life and endeavor into which the government may wander.