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Art. 1, Sec. 8. of the US Constitution: 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.”

Does this clause mean that the US Government can legislate in any way that benefits the Union? According to Thomas Woods, the general welfare clause “was a restriction on the power of the federal government: it had to exercise the powers delegated to it with an eye to the welfare of the country as a whole, not to the particular advantage of one state or section.”[i] That is to say, the Congress could provide for the general welfare of the United States only within its delimited powers listed in the US Constitution.

According to Thomas Jefferson, to interpret “general welfare” as granting the federal government an 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.”[ii] In other words, why did the constitutional convention delegates bother to list the powers if the Congress could do anything it wanted? James Madison in the 1830s: “(I)t exceeds the possibility of belief” that those who believed in limited government “should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.”[iii] In Federalist #41:, Madison writes, “For what purpose could the enumeration of patriculars be inserted, if these and all others were meant to be included in the preceding general power?” He also observed that “(i)f Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, … everything … would be thrown under the power of Congress.”[iv] Therefore, in 1800, he concluded that “(i)n its fair and consistent meaning, [the general welfare clause] cannot enlarge the enumerated powers vested in Congress.”[v] We could generalize to say that any reference–directly or by implication–in the US Constitution to the powers of the Congress must be taken to refer to its enumerated powers or the document must be rendered as nonsensical. The problem thus arises when an enumerated power is stretched beyond its meaning even in a contemporary context. That is to say, we need not be limited to original intent (i.e., of the convention delegates) to find that the US Constitution limits the power of Congress.


Click to add a question or comment (and to view them) on the interaction of the general welfare clause and the enumerated powers on federalism in American constitutional law.

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[i] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 25.

[ii] Thomas Jefferson, “Opinion Against the Constitutionality of a National Bank,” in The American Republic: Primary Sources, ed. Bruce Frohmen (Indianapolis: Liberty Fund, 2002), 501.

[iii] Raoul Berger, Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987), 105.

[iv] Adrienne Koch, Jefferson and Madison: The Great Collaboration (New York: Alfred A. Knopf, 1950), 129.

[v] James Madison, Virginia Report of 1800, exerpted in Document 5.