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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.

As to whether the supreme courts of particular American states, or republics, should be able to declare the general (U.S.) government’s health-insurance mandate unconstitutional in the sense of being an encroachment of the government of the union beyond its enumerated powers, it is typically presumed that the U.S. Supreme Court is the rightful and proper umpire--the court of last resort on disputes on federalism applied to particular legislation. Forgotten is the argument made by Thomas Jefferson against that court’s suitability owing to its institutional conflict of interest in contests between the U.S. Government, of which the U.S. Supreme Court is a branch, and a goverment of one of the several states.  Typically, we do not consider how the conflict of interest can be solved. We do not “think outside the box.” Rather, we feel resigned to have branch of one of the parties of the dispute act as the final decider short of a constitutional amendment.

We do not consider, for example, that perhaps a council of the States’ Supreme Court Chief Justices (or their attorney generals) might be a less problematic alternative. We need not throw up our hands and leave it to any state to nullify any federal law it doesn’t like. We can design an umpire of federalism in such a way that the the encroaching tendency of the center is counterbalanced by the interests of the states in deciding the question. That is to say, we ought to design the umpire mechanism in such a way that tilts in the direction of the states, given the tilt of power in the other direction historically and today. It is well worth reviewing Jefferson’s argument so this doesn’t sound so radical. Given our aversion to real change, the need for a constitutional amendment must be backed up by a mainstream figure.

Essentially, Jefferson maintained that there is a conflict of interest in one branch of the US Government–the US Supreme Court–being the ultimate umpire in federalism disputes between a State and the US Government. It is like having a member of one of the two baseball teams playing being the umpire. In college, I was a referee for intermural football. I was stunned when the coordinator of the refs, himself a student, assigned himself to referee the game involving his own fraternity. When I suggested that there is a conflict of interest in his self-assignment, he dismissed my concern out of hand. Sadly, this sort of attitude characterizes Americans in general with respect to institutional conflicts of interest in our government (and between business and government). I contend that we are blind to such ethical problems, and the viability of our federal system of public governance, which includes semi-sovereign States, is paying the price in the form of a massive imbalance.

One might counter that the separation of powers in the US Government make the US Supreme Court independent of the Congress and President. According to Thomas Woods, the separation of powers in the federal government cannot be relied on to distinguish the US Supreme Court’s interest from its basis as a branch of the US Government because the “three federal branches can simply unite against the independence of the states and the reserved rights of the people.”[i] In 1825, Thomas Jefferson wrote, “It is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”[ii] Jefferson believed that in a dispute between the states and the federal government, the resolution should not come from a branch of the federal government. With the US Supreme Court as the umpire on federalism questions, the states “would inexorably be eclipsed by the federal government.”[iii] Woods observes, “(S)ince the federal courts are themselves a branch of the federal government, how can the people be expected to consider them impartial arbiters? The [US] Supreme Court itself, after all, although usually pointed to as the monopolistic and infallible judge of the constitutionality of the federal government’s actions, is itself a branch of the federal government.”[iv] For one thing, US Supreme Court justices are selected by the US President and confirmed by US Senators. In this process, even an unconscious “similarity of perspective” is likely to be sought or welcomed even with respect to one’s vantage-point (i.e., perspective). Spencer Roane, a Virginia judge whom Jefferson would have nominated to the US Supreme Court, wrote, “the States never could have committed an act of such egregious folly as to agree that their empire should be altogether appointed and paid by the other party. The [US] Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members… . The [US] Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate… . They cannot do it unless we tread underfoot the principle which forbids a party to decide his own cause.”[v] As a branch of the Federal government, the US Supreme Court justices have at the very least a perspective from the “whole”–meaning the US as a whole–which is the vantage-point of the US Government. This is a background basis of similarity; the nominating President and the confirming Senators are likely to ask questions of a nominee that would show the nominee’s attitude or opinion concerning the power of the US Government (i.e., the power of the President and Senators!). The conflict of interest is clear, yet no one points to it. This is very odd indeed–tantamount to a societal blindspot.

Not unexpectedly, the US Supreme Court has consistently and overwhelmingly decided federalism cases in favor of the US Government. Even the Morrison and Lopez cases on the reach of the interstate commerce clause in the 1990s allow for indirect economic effects from such commerce to justify the jurisdiction of the US Government over those of the States. An indirect effect is just the sort of loophole that the US Government has been using to expand its power. So even the Rhenquist court was pro-US Government vis a vis the States. Joseph Desha, governor of Kentucky in 1825, wrote, “most of the encroachments made by the general government flow through the [US] Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the States when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors.”[vi] What amazes me is not so much the historical trend; rather, I’m bewildered by how such an obvious conflict of interest could be allowed to fly for so long under the radar screen of American public consciousness. This really should tell us something about ourselves, and we ought not to be flattered by what we see.


Click to add a question or comment on the ethics of the Supreme Court on federalism cases.

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[i] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 4.

[ii]Thomas Jefferson to William B. Giles, December 26, 1825, in The Writings of Thomas Jefferson, vol. 10, ed. Paul L. Ford (New York: G. P. Putnam’s Sons, 1899), 355.

[iii] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[iv] Woods, Jr., Thomas E. Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery, 2010), 5.

[v] James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 156.

[vi] State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (New York: Longman’s, Green, 1911), 113.

In mid 2010, I engaged in a spontaneous conversation in passing with a man who told me that he was the manager of the diving facilities of the Rockford Country Club in Illinois. I was stunned to learn that that country club had only two black members out of what must have been at least a thousand, if not more. He told me there were not many “people of color in positions” in the city. I stood there stunned. In 2010, people still have that mentality? He said the city was twenty years behind.  I would say more something more like forty. Yet strangely, he noted that because families had changed, he had recently changed the dress code in one of the dining areas so kids from the pool could be accommodated. So, we are to believe that the situation of blacks hasn’t changed, but families have. To be sure, the family structure and dynamics had indeed changed in the last quarter of the twentieth century as women entered the workplace en masse and the number (and proportion) of diverces increased. However, it is unclear to me how these changes translate into making a dining area “informal."

The caucasion manager’s selective view of societal change—being no doubt convenient for him—struck me as strange. I got the impression that people in that city must be averse to (or scared of) virually any kind of change. How is it, I thought to myself as he spoke, that people could find so much satisfaction in the status quo? The manager told me that status and race were still important in that city. Relatedly, he characterized the city of 150,000 as a southern town interlarded in the north. His country club was the epitome of consciousness based on status and race.  Moreover, that club evinced what both John Adams and Thomas Jefferson called the artificial aristocrisy, which is comprised of wealth and birth.  This kind of elitism is distinct from the natural sort, which the two American founders took to be based on virtue and talent. Racism, and the segregation that ensues from it, is of the artificial sort.

Lest any kind of segregation be excoriated against, it should be noted that it can be quite natural for polite people to want to segregate themselves from the vulgar. There is indeed a marked difference in how people have been raised, and in how they conduct themselves.  This is not to say, however, that manners are on the side of the country club, for arrogance and elitism are quite rude qualities.  It seems to me that politeness can be reckoned as a virtue, and thus placed in the natural aristocrisy.  Perhaps education too, or at least valuing it, is also akin to virtue. The city in which the country club is located is at least historically heavily blue-collar.  Traditionally, the people holding such jobs felt threatened by education, and thus looked down on it.  Is it not natural that a highly educated person would rightfully want some distance from being disvalued?  There is, I submit, a natural aristocrasy that legitimates the natural grouping tendency of human beings.  We tend naturally to segregate ourselves. It is difficult to generalize against this propensity.  A mother of young kids is apt to segregate her family from a known child molester (one of the Catholic churches in the city had one as a priest). Ex-smokers are apt to segregate themselves from people who impose with their addition.  Furthermore, people with common interests are apt to associate. An apologist for the country club might say that it is composed of members who have common interests and generally get along. In this respect, it seems quite natural. However, it is not clear to me that these qualities cannot pertain to people of different races. Such artificial delimiters are perhaps why artificial aristocrisy is so squalid; there is also a rather significant opportunity cost to it. Sadly, the manager seemed utterly unaware that he subscribed to it at all, yet fully sure of himself nonetheless.

A venture more useful than bashing presumption at a country club involves coming up with a criterion on which “good” from “bad” segregation can be determined. Generally speaking, segregating a virtue from its associated vices is justifiable. Immediately a problem can be detected. Namely, although there are a cluster of virtues on which most people would agree, there is no fixed number. Furthermore, people such as the dining manager at that country club can use a virtue (e.g., gaining a vocational position through talent and effort) to attempt to justify what is really just garden variety racism and elitism.  In short, segregation of virtue from vice, while in itself laudable, can involve a slippery slope that can essentially whitewash segregation that could be considered as a vice.  Can we trust in nature, such that the natural associative instinct can be distinguished from the squalid instances of segregation?  Furthermore, are there certain virtues that can be deemed as legitimate sources of segregation—such virtues being agreed to explicitly or tacitly in a social contract?  In modern society, segregation by race is explicitly excoriated against, though I’m not sure if it is implicitly agreed to by all. There might be a natural instinct to associate with similar people. Just as people include physical appearance in determining whom to date, external features could be part of the mix in how humans are hardwired to associate. Likeness might be associated in evolution with survival as like is not apt to fight with like.  However, external features are an imperfect indicator of whom a person is apt to get along with—though not irrelevant.  So modern man may well have to sometimes choose to override instinct in the knowledge that going by virtue can have more survival value.  Similar values can trump similar skin-color, even if the clubby vestiges of racism make it more difficult to trust across the artificial lines even in the twenty-first century.

In a few days during July in 2010, the American media was obsessed with Shirley Sherrod, who in a tightly edited video clip had made apparently-racist statements about not helping a caucasion farmer because he was caucasion. She was quickly fired by Tom Vilsak, the US Secretary of Agriculture, who, like the journalists and the NAACP, had failed to look at the full video.  The day after Sherrod was fired, the NAACP looked at the full video and realized that she was actually a racial healer rather than racist.  In the fuller video, she said, “I have come to realize that we have to work together … we have to overcome the divisions we have.”  Even as she used questionable language, such as “his own kind,” it should not be forgotten that the clan killed her father.  In other words, she deserves some slack.  At any rate, it was not long after the NAACP’s about-face that the agriculture department and the media were doing also doing an about-face. According to the NYT, “the White House and Mr. Vilsack offered their profuse apologies to her for the way she had been humiliated and forced to resign after a conservative blogger put out a misleading video clip that seemed to show her admitting antipathy toward a white farmer.”

Bill O’Reilly of Fox apologized—though while suggesting that Sherrod “very well could have seen things through a racial prism” and had been “blatantly partisan” on the job possibly in violation of the Hatch Act so she should not work in government.  O’Reilly was apologizing for not having done due diligence in “reporting” the story by watching the entire video before making a judgement. Like so many other journalists, he lept at the story without adequately checking the source—the video or Sherrod herself.  Even as the journalists were apologizing for their bad work, they wanted to distinguish themselves as journalists from the “blogger” or “activist” who had posted the edited video clip in the first place. O’Reilly promised his viewers that they could still come to him for good journalism even as he had gotten the story wrong.

Beyond the momentary obsession that the media enjoyed at Sherrod’s expense—the obsession itself being a problem missed by the journalists themselves—this case allows us to glimpse how journalism changed so much in the first decade of the twenty-first century. The case put journalists in the position of distinguishing themselves from bloggers when both had engaged in bad judgment. Hence Bill O’Reilly’s statement that his viewers could come to him for good reporting (rather than have to rely on bloggers) in spite of the fact that he had just engaged in bad journalism and may have done Sherrod another injustice even in his apology. To be sure, the blogger had erred in posting such an edited video clip without providing the context.  However, given the opining of many mainstream journalists who work for media companies and the actual news provided on blogs, the line between “journalist” and blogger are blurred.  Hence the journalists working for media companies were sure to distance themselves from the blogger, who they said was not a real journalist, even though they had all made the same mistake. Were there a clear distinction to be made between the journalists and the bloggers, the former would have done better work—but they didn’t.

Back in 1984 when Daniel Schorr was working at CNN, he objected to the network’s plan to couple him with John Connally, who had been the Governor of Texas and a Secretary of the Treasury, to cover the Republican Convention. It was improper, Mr. Schorr said, to mix a politician with a journalist. In 2010, journalists were saying that it was improper to mix a journalist with a blogger. By then, many television journalists were giving opinions, and were thus closer being politicians, while many bloggers were providing news even before the networks. Lest the journalists point to their educational credentials from schools of journalism, how many American journalists in the nineteenth or even the twentieth century majored in journalism?  Is learning on the job at a newspaper so much different than the entrepreneurs who free lance at their own blogs to provide news?  If these are so different, why didn’t the “journalists” in the Sherrod case catch rather than perpetuate the blogger’s mistake? The proof is in the pudding.

The fact is that many bloggers are able to provide news because a person does not have to study journalism to have access to some information that is new. As a blogger myself, I have not found myself in this position—hence I confine myself to providing analysis based on my years of formal education and on the news provided by others—bloggers or “journalists.”  I must admit that I am more apt to trust the news from a company simply because there are institutional requirements for verifying stories, though as the Sherrod case shows, a media company’s procedures are not always sufficient. The difference between a news company and a blogger is perhaps in the checking or verification function, rather than so much in the getting of news (though the companies have more resources).  Even so, news can come from a variety of sources—not just from people who have a BA in journalism.  As a consequence, there is more of a need for verification—precisely because there are so many blogger/entrepreneurs operating. To dismiss them by saying they are not really journalists is an over-reaction and ill-founded. However, to insist on due diligence and verification on any report is even more pressing. Perhaps rather than have their journalists invoke artificial diremptions, news organizations could hire or contract per piece with many of the bloggers who are providing news so the latter could have access to the organizational wherewithal to verify stories.  These bloggers would then have the advantages of being entrepreneurs and of having the wherewithal to do due diligence.

Daniel Schorr, a protégé of Edward R. Murrow at CBS News and an aggressive reporter who got into conflict with censors, the Nixon administration and network superiors would likely see the advantages that bloggers have in terms of freedom, while being worried (as I am as well) concerning the due diligence limitations faced by the entrepreneurs. He got his first scoop, which earned him $5, when he was 12. A woman fell or jumped from the roof of the apartment house where he lived, and he called the police, interviewed them about the victim and then called The Bronx Home News, which paid for news tips.  Had there been an internet, he likely would have been a blogger. Would that have made a difference?

While good to a point, a profession’s gate-keeping can be readily subverted into simply keeping people out who are otherwise doing good work. In spite of the Sherrod blogger, other bloggers have been providing news—otherwise, the media companies would not be citing them as sources. Rather than fighting the bloggers, the “journalists” who got the Sherrod story wrong might offer a hand; they might just find that they will be helped in return. News is like water in a stream—there are many feeder streams.  Moreover, the nature of news is freedom,which is inherently broad rather than circumscribed.  This is particularly so in a high-tech world where the internet has had a democratizing effect in expanding the sources of news and analysis.  In this context, we might be wise to remember Ben Franklin and Thomas Jefferson concerning the need for an educated electorate rather than try to monopolize information-getting to those in the club.

Source on Schoor: http://www.nytimes.com/2010/07/24/business/media/24schorr.html?_r=1&hp
Source on Sherrod: http://www.nytimes.com/2010/07/22/us/politics/22sherrod.html?scp=1&sq=sherrod&st=cse

A year after the financial crisis of 2008, Lloyd Blankfein, the CEO of Goldman Sachs,  found himself vilified for his firm’s quick return to risky trading in spite of its new bank holding company status. Populist resentment at the time was especially pitted against the hefty bonuses from the trades. Also, people were upset about the benefits that the bank had obtained from the decisions of its alums in the U.S. Government—specifically, in the U.S. Department of the Treatury. For instance, Goldman Sachs and other AIG counterparties got a the dollar-for-dollar payout from AIG thanks to an infusion of funds for that specific purpose by Treasury. Regardless, in an interview with the London Times, the highest-paid CEO (at least in the financial sector) dismissed such talk and defended his money-making machine and its compensation.  In addition to being the engine of economic recovery, according to Blankfein, Goldman Sachs provides a social function in making capital available to companies so they can expand. Stunningly, he adds, “I’m doing God’s work.”[i]  Such a claim is a far cry indeed from Thomas Jefferson’s warning that banking institutions are more dangerous to our liberties than standing armies.[ii]  Perhaps God intends to undo our liberties by bailing out the banks.

Besides these rather obvious problems with Blankfein's religious claim is his presumption to know what God's work is, and, furthermore, that he is doing it.   Even though a feckless system of corporate governance can enable a CEO to essentially function as his or her own boss, including doing the board's job of evaluating his or her own performance, it is a tall order for a human being to be able to evaluate his performance as God's work.   To be sure, it is possible that God is an intelligent being that bestows favor on his golden stewards for doing His work.

Lloyd Blankfein may have been involved in two conflicts of interest: 1) that of having excessive power over the board whose principal task it is to oversee him, 2) having communicated with GS alums in high posts in the U.S. Government (e.g., Hank Paulson) and perhaps having them enact policies on GS's behalf.   It may be that institutional and personal conflicts of interests can become so ubiquitous that they are simply not seen by the culprits. Furthermore, it could be that the denial enabled by a tacit presumptuousness is like a white movie screen on which even doing God's work can be projected. How ironic it is, that sordid proprietary interest could operate not merely under the subterfuge of being a neutral "market-maker," but also as God's work. Such work is two degrees of freedom away from squalid greed. So it is remarkable that the two could become conflated in a mind.

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[i] John Arlidge, I’m doing ‘God’s work. Meet Mr. Goldman Sachs, The Sunday Times, 11/9/09.
[ii] Thomas Jefferson to John Taylor, Monticello, May 28, 1816, in Paul L. Ford, ed., The Writings of Thomas Jefferson (New York: G.P. Putnam’s Sons, 1892-99),  XI, 533.