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==United States==
==United States==
{{contradiction|section}}
{{Main|Taxing and Spending Clause}}
{{Main|Taxing and Spending Clause}}
The [[United States Constitution]] contains two references to "the General Welfare", one occurring in the [[Preamble to the United States Constitution|Preamble]] and the other in the [[Taxing and Spending Clause]]. It is only the latter that is referred to as the "General Welfare Clause" of this document. These clauses in the U.S. Constitution are exceptions to the typical use of a general welfare clause, and are not considered grants of a general legislative power to the federal government<ref>{{cite book|last=Sorenson|first=Leonard |title=Madison on the "General Welfare" of America: His Consistent Constitutional Vision |year=1995 |url=http://www.cato.org/pubs/journal/cj16n1-11.html }}</ref> as the [[Supreme Court of the United States|U.S. Supreme Court]] has held:
The [[United States Constitution]] contains two references to "the General Welfare", one occurring in the [[Preamble to the United States Constitution|Preamble]] and the other in the [[Taxing and Spending Clause]]. It is only the latter that is referred to as the "General Welfare Clause" of this document. These clauses in the U.S. Constitution are exceptions to the typical use of a general welfare clause, and are not considered grants of a general legislative power to the federal government<ref>{{cite book|last=Sorenson|first=Leonard |title=Madison on the "General Welfare" of America: His Consistent Constitutional Vision |year=1995 |url=http://www.cato.org/pubs/journal/cj16n1-11.html }}</ref> as the [[Supreme Court of the United States|U.S. Supreme Court]] has held:
* the Preamble to the U.S. Constitution "has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments";<ref>{{cite court|litigants=Jacobson v. Massachusetts |vol=197 |reporter=U.S. |opinion=11 |pinpoint=22 |year=1905 |url=http://supreme.justia.com/us/197/11/case.html#22 |quote=Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. }}</ref><ref>{{cite book|last=Killian |first=Johnny |coauthors=George Costello, Kenneth Thomas |title=The Constitution of the United States of America—Analysis and Interpretation |publisher=U.S. Government Printing Office |year=2004 |location=Washington, D.C. |page=53 |url=http://www.gpoaccess.gov/constitution/pdf2002/010.pdf }}</ref> and,
* the Preamble to the U.S. Constitution "has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments";<ref>{{cite court|litigants=Jacobson v. Massachusetts |vol=197 |reporter=U.S. |opinion=11 |pinpoint=22 |year=1905 |url=http://supreme.justia.com/us/197/11/case.html#22 |quote=Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. }}</ref><ref>{{cite book|last=Killian |first=Johnny |coauthors=George Costello, Kenneth Thomas |title=The Constitution of the United States of America—Analysis and Interpretation |publisher=U.S. Government Printing Office |year=2004 |location=Washington, D.C. |page=53 |url=http://www.gpoaccess.gov/constitution/pdf2002/010.pdf }}</ref> and,
* that [[Associate Justice of the Supreme Court of the United States|Associate Justice]] [[Joseph Story]]'s [[statutory interpretation|construction]] of the Article I, Section 8 General Welfare Clause—as elaborated in Story's 1833 ''Commentaries on the Constitution of the United States''—is the correct interpretation.<ref>{{cite court|litigants=United States v. Butler |vol=297 |reporter=U.S. |opinion=1 |pinpoint=65 |year=1936 |url=http://supreme.justia.com/us/297/1/case.html#65 |quote=Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. }}</ref><ref>{{cite book|last=Killian |first=Johnny |coauthors=George Costello, Kenneth Thomas |title=The Constitution of the United States of America—Analysis and Interpretation |publisher=U.S. Government Printing Office |year=2004 |location=Washington, D.C. |pages=161–64 |url=http://www.gpoaccess.gov/constitution/pdf2002/011.pdf }}</ref> Justice Story concluded that the General Welfare Clause is not an independent grant of power, but a qualification on the taxing power which included within it a power to spend tax revenues on matters of general interest to the federal government.
* prior to 1936, the General Welfare Clause was not considered an independent grant of power, but instead a qualification on the taxing power which included within it a power to spend tax revenues in the interest of the general welfare.<ref>{{cite court|litigants=United States v. Butler |vol=297 |reporter=U.S. |opinion=1 |pinpoint=65 |year=1936 |url=http://supreme.justia.com/us/297/1/case.html#65 |quote=Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. }}</ref><ref>{{cite book|last=Killian |first=Johnny |coauthors=George Costello, Kenneth Thomas |title=The Constitution of the United States of America—Analysis and Interpretation |publisher=U.S. Government Printing Office |year=2004 |location=Washington, D.C. |pages=161–64 |url=http://www.gpoaccess.gov/constitution/pdf2002/011.pdf }}</ref> In recent decades, the Court conferred upon Congress a [[plenary power]] to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion, including the power to indirectly coerce [[U.S. State|the states]] into adopting national standards by threatening to withhold federal funds.<ref name="Dole"/>


[[Thomas Jefferson]] explained the latter general welfare clause for the United States: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ''ad libitum'' for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”<ref>{{cite book|editor-last=Boyd |editor-first=Julian P. |title=The Papers of Thomas Jefferson |volume=19 |page=285 |publisher=Princeton University Press |url=http://www.princeton.edu/~tjpapers/index.html |location=Princeton |year=1950 }}</ref>
[[Thomas Jefferson]] explained the latter general welfare clause for the United States: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ''ad libitum'' for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”<ref>{{cite book|editor-last=Boyd |editor-first=Julian P. |title=The Papers of Thomas Jefferson |volume=19 |page=285 |publisher=Princeton University Press |url=http://www.princeton.edu/~tjpapers/index.html |location=Princeton |year=1950 }}</ref>

Revision as of 03:23, 17 April 2012

A General Welfare clause is a section that appeared in many constitutions, as well as in some charters and statutes, which provides that the governing body empowered by the document may enact laws to promote the general welfare of the people. In some countries, this has been used as a basis for legislation promoting the health, safety, morals, and well-being of the people governed thereunder (also known as the police power). Such clauses are generally interpreted as granting the state broad power to legislate or regulate for the general welfare that is independent of other powers specified in the governing document.

Argentina

The Constitution of Argentina provides in its Preamble that one of its purposes is to "promote the general welfare". A comparative, international analysis of the meaning of this phrase in the Argentine constitution is provided by a report from the Supreme Court of Argentina:

In Ferrocarril Central Argentino c/Provincia de Santa Fe, 569 the Argentine Court held that the General Welfare clause of the Argentine Constitution offered the federal government a general source of authority for legislation affecting the provinces. The Court recognized that the United States utilized the clause only as a source of authority for federal taxation and spending, not for general legislation, but recognized differences in the two constitutions.[1]

United States

Main article: Taxing and Spending Clause

The United States Constitution contains two references to "the General Welfare", one occurring in the Preamble and the other in the Taxing and Spending Clause. It is only the latter that is referred to as the "General Welfare Clause" of this document. These clauses in the U.S. Constitution are exceptions to the typical use of a general welfare clause, and are not considered grants of a general legislative power to the federal government[2] as the U.S. Supreme Court has held:

  • the Preamble to the U.S. Constitution "has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments";[3][4] and,
  • prior to 1936, the General Welfare Clause was not considered an independent grant of power, but instead a qualification on the taxing power which included within it a power to spend tax revenues in the interest of the general welfare.[5][6] In recent decades, the Court conferred upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion, including the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds.[7]

Thomas Jefferson explained the latter general welfare clause for the United States: “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.”[8]

In 1824 Chief Justice John Marshall described in obiter dictum a further limit on the General Welfare Clause in Gibbons v. Ogden: "Congress is authorized to lay and collect taxes, &c. to pay the debts and provide for the common defence and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."[9]

The historical controversy over the U.S. General Welfare Clause arises from two distinct disagreements. The first concerns whether the General Welfare Clause grants an independent spending power or is a restriction upon the taxing power. The second disagreement pertains to what exactly is meant by the phrase "general welfare."

The two primary authors of the The Federalist essays set forth two separate, conflicting interpretations:

  • James Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax.[10][11] It should be noted that the requisite threshold of nine states for ratification of the constitution had already been met by the time Virginia ratified[12], and eight states had already ratified before the specific paper in which Madison made this argument [13] was published in bound form [14][15]. Before this time, they had only been published irregularly outside of New York[16], which itself ratified after Virgina. While the Federalist papers are considered an important contemporary account of the views and intentions of the founders[17], they are widely considered to have had little effect on the actual passage of the constitution.[18][19][20]
  • Alexander Hamilton, only after the Constitution had been ratified,[21] argued for a broad interpretation which viewed spending as an enumerated power Congress could exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education, provided that the spending is general in nature and does not favor any specific section of the country over any other.[22]

While Hamilton's view prevailed during the administrations of Presidents Washington and Adams, historians argue that his view of the General Welfare Clause was repudiated in the election of 1800, and helped establish the primacy of the Democratic-Republican Party for the subsequent 24 years.[23]

Prior to 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstrated by the holding in Bailey v. Drexel Furniture Co.,[24] in which a tax on child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause. This narrow view was later overturned in United States v. Butler. There, the Court agreed with Associate Justice Joseph Story's construction in Story's 1833 Commentaries on the Constitution of the United States. Story had concluded that the General Welfare Clause was not a general grant of legislative power, but also dismissed Madison's narrow construction requiring its use be dependent upon the other enumerated powers. Consequently, the Supreme Court held the power to tax and spend is an independent power and that the General Welfare Clause gives Congress power it might not derive anywhere else. However, the Court did limit the power to spending for matters affecting only the national welfare.

Shortly after Butler, in Helvering v. Davis,[25] the Supreme Court interpreted the clause even more expansively, conferring upon Congress a plenary power to impose taxes and to spend money for the general welfare subject almost entirely to its own discretion. Even more recently, the Court has included the power to indirectly coerce the states into adopting national standards by threatening to withhold federal funds in South Dakota v. Dole.[7] To date, the Hamiltonian view of the General Welfare Clause predominates in case law.

References

  1. ^ Miller, Jonathan M. (1997). "The Authority of a Foreign Talisman: A Study of U.S. Constitutional Practice as sicks Authority in Nineteenth Century Argentina and the Argentine Elite's Leap of Faith". American University Law Review. 46 (1483, at 1562). Washington, D.C.: American University Washington College of Law.
  2. ^ Sorenson, Leonard (1995). Madison on the "General Welfare" of America: His Consistent Constitutional Vision.
  3. ^ Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905) ("Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.").
  4. ^ Killian, Johnny (2004). The Constitution of the United States of America—Analysis and Interpretation (PDF). Washington, D.C.: U.S. Government Printing Office. p. 53. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  5. ^ United States v. Butler, 297 U.S. 1, 65 (1936) ("Since the foundation of the Nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is mere tautology, for taxation and appropriation are, or may be, necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one.").
  6. ^ Killian, Johnny (2004). The Constitution of the United States of America—Analysis and Interpretation (PDF). Washington, D.C.: U.S. Government Printing Office. pp. 161–64. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  7. ^ a b South Dakota v. Dole, 483 U.S. 203 (1987).
  8. ^ Boyd, Julian P., ed. (1950). The Papers of Thomas Jefferson. Vol. 19. Princeton: Princeton University Press. p. 285.
  9. ^ Gibbons v. Ogden, 22 U.S. 1, 199 (1824).
  10. ^ Madison, The Federalist No. 41 General View of the Powers Conferred by The Constitution, The Independent Journal
  11. ^ Madison, James. (3 March 1817) Letter to the House of Representatives,Veto of federal public works bill, March 3, 1817
  12. ^ Virgina's ratification: June 25, 1788[1]
  13. ^ Federalist #41 [2]
  14. ^ Publication of The Federalist, Volume Second: May 28, 1788[3]
  15. ^ South Carolina's ratification: May 23, 1788[4]
  16. ^ Furtwangler, 20.
  17. ^ Lupu, Ira C.; "The Most-Cited Federalist Papers". Constitutional Commentary (1998) pp 403
  18. ^ http://www.sparknotes.com/history/american/federalist/context.html
  19. ^ http://www.nolo.com/legal-encyclopedia/content/fed-papers-doc.html
  20. ^ Furtwangler, 21.
  21. ^ Woods, Thomas E., Jr. (2008). 33 Questions About American History You're Not Supposed to Ask. New York City: Three Rivers Press.{{cite book}}: CS1 maint: multiple names: authors list (link)
  22. ^ Hamilton, Alexander. (5 December 1791) "Report on Manufactures" The Papers of Alexander Hamilton (ed. by H.C. Syrett et al.; New York and London: Columbia University Press, 1961-79)
  23. ^ Eastman, John C. (2001). "Restoring the "General" to the General Welfare Clause". Chapman Law Review. 4 (63). Orange, CA: Chapman University School of Law.
  24. ^ Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).
  25. ^ Helvering v. Davis, 301 U.S. 619 (1937).

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