Recovering the Lost General Welfare Clause

65 Pages Posted: 15 Aug 2020 Last revised: 10 Feb 2021

See all articles by David S. Schwartz

David S. Schwartz

University of Wisconsin Law School

Date Written: February 9, 2021

Abstract

The General Welfare Clause of Article I, section 8, Clause 1 enumerates a power "to provide for the common defense and general welfare." A literal interpretation of this clause ("the general welfare interpretation") would authorize Congress to legislate for any national purpose, and therefore to address all national problems"including the COVID-19 pandemic"in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called "Spending Power," a power only to spend, but not to regulate, for national purposes. This article argues that both the text and the drafting history of the General Welfare Clause support reading it as a power to regulate on all national problems, such as environmental degradation, violence against women, or the COVID-19 pandemic. It is only our superficial ideological commitment to enumerationism "the doctrine of limited enumerated powers" that causes us to depart from the most evident textual interpretation of the General Welfare Clause. Recovering the lost General Welfare Clause is particularly important at this moment in constitutional history, when a conservative and supposedly originalist Supreme Court is poised to greatly constrict federal power to respond to pressing national problems in service of a tendentious and badly one-sided account of founding-era views on federalism.

Keywords: General welfare, taxing power, spending power, Constitutional Convention, James Madison, Gouverneur Morris, James Wilson, framers, Committee of Detail, Committee of Style, Necessary and Proper Clause, enumerated powers

JEL Classification: K40: Legal Procedure, the Legal System, and Illegal Behavior

Suggested Citation

Schwartz, David S., Recovering the Lost General Welfare Clause (February 9, 2021). Univ. of Wisconsin Legal Studies Research Paper No. 1603, Available at SSRN: https://ssrn.com/abstract=3671883 or http://dx.doi.org/10.2139/ssrn.3671883

David S. Schwartz (Contact Author)

University of Wisconsin Law School ( email )

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Madison, WI 53706
United States

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