Editors’ Note: This is the third in a series feature in which VF editors may join along with volunteer contributors to discuss a contemporary topic. This “real time” installment features Jim McCarthy, Frank Blechman, Barbara Levine, and Andrew Scalise. Our last colloquy, on police reform, can be viewed at https://wp.me/p9wDCF-2fg. Let us know what you think.
The Preamble to the US Constitution states that one reason for forming the new nation is to “promote the general welfare.” More specifically, in Art. I, Sec. 8, the document provides Congress with specific authority: 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…. We are a vastly different country at present in geographical size, population, number of states, and economic complexity. What are your thoughts and ideas as to what is included in the general welfare?
McCarthy: Thinking about the meaning of this term reminds me of the Supreme Court quandary about defining pornography. In 1964, Justice Potter Stewart declared he could not define it, but knew it when he saw it. The nation’s Social Security program would seem to fit the general welfare but perhaps not the Trump tax cuts because they did not benefit citizens generally. During the 2020 Democratic primary, Andrew Yang proposed a Universal Basic Income, which attracted little popular acclamation. Now, along comes COVID-19, and the debate is not whether to send citizens money but how much. Do expanded voting rights promote the general welfare? Is one test whether citizens or voters understand any proposal’s benefit to them individually?
Blechman: The preamble to the United States Constitution (1787) explicitly names six functions for the national government, which it creates: “… To form a perfect union, establish Justice, ensure domestic Tranquility, provide for the common Defense, promote the general Welfare, and to secure the Blessings of Liberty to ourselves and our posterity.” We believe that most of these terms were considered clear to readers at the time. However, to us, 234 years later, most seem vague and open to interpretation. Even at the time, several states balked at ratification, demanding and getting amendments (including the “Bill of Rights”) to constrain activities under those broad categories. For example, today we understand that Tranquility and the Common Defense does not permit (thanks to the third amendment) the quartering of troops in private homes in times of peace. Similarly, we know that “establish Justice” means laws and courts, not all-powerful magistrates backed by militias. But what about that phrase, “promote the general welfare”? Almost all of the institutions created to provide public services (such as education, health, public safety, sanitation) are local or state, not federal. In the last century, the federal government has stuck its nose into these areas, but the institutions largely remain nonfederal. From our perspective today, what does the term “general welfare” mean?
Levine: The definition of General Welfare is “concern of the government for the health, peace, morality and safety of its people”, according to FreeDictionary.com. One could certainly say that under this definition, the government should be obligated to provide health care; make sure that workplace safety rules are expanded and enforced; and for the health, safety, and morality of its people, ensure that all citizens earn a decent wage and are able to put a roof over their heads and food on the table. I could also argue that a decent education helps to develop a sense of self worth and understanding of the world, which could perhaps lead to some form of morality–but whose?
Scalise: The preamble establishes the Framers’ expectation of a good government, including providing for the general welfare of the country. Art. I, Sec. 8. specifically refers to collecting funds from citizens to provide for the general welfare. Individuals experience this general welfare primarily at the state and local levels: roads, schools,
food and medical assistance programs, housing assistance, etc. It is often harder to identify federal activities that promote the general welfare, but we rely on them every day. Agencies like the EPA, FAA, FDA, CDC, NIH, and hundreds of others rely on federal funds to ensure that the people and the country itself are safe from dangers in
the food supply, environmental crises, medical emergencies, etc. Some readers may even remember a time when the salaries of our members of Congress could be considered promoting the general welfare.
Blechman: If we presume that the term “general” welfare was inserted into the Constitution explicitly to distinguish their system from one that would narrowly benefit a few, then the question becomes “How many” or “how much” qualifies as “general”? 100%? 50%? 20%? And, how direct does that benefit have to be? Public education (not a federal function) directly benefits children ages 4-18, less than 15% of the population at any given time. We can argue that education helps all of us, since children grow up to be everyone. But that same logic was used by Reagan to argue that ‘trickle-down’ tax cuts really benefited everybody. We can imagine that the Federal Aviation Administration provides safer skies for all, but air travelers and the airline industry benefit far more than the rest of us. For me, the term “general welfare” is like the phrase “the blessings of liberty.” These are aspirations by the Founders that were inserted to make clear that they were not proposing a system like the one they left in England, with entitled nobility who could rule largely by fiat. These terms provide little guidance, much less guardrails, for us today. Of course, I am not a lawyer, so that is easy for me to say.
McCarthy: As we have learned from SCOTUS, the Constitution was not written for lawyers, although many of that persuasion had a hand in its crafting. Nor may the general welfare be assigned metrics of how much and how many to appreciate whether a legislative or executive measure is consistent with promoting the general welfare. The federal government affords a great deal of resources to public education, from lunches to building construction to teacher training to scholarship grants. Mr. Scalise makes a valuable point in citing the states as providers of the general welfare. In short, states have engaged in a number of efforts to reach more citizens with more of a share of available resources. I have come to believe that the term common wealth is related to the duty of Virginia to share its bounty among all citizens. As the General Assembly considers abolition of the death penalty, enhanced voter participation, and legalization of marijuana, the concept of general welfare is surely tested. Those measures are even more dramatically under scrutiny by Mr. Blechman’s “how many” and “how much” paradigm. How are we all better off for the absence of the death penalty?
Levine: So it would appear that the real problem is in the definition of General Welfare. FDR’s depression-era programs seemed to be the very essence of General Welfare–assistance to states and individuals at a time when the whole country was in need. The same, perhaps with Social Security, Medicare and Medicaid, and the host of programs surrounding them. Likewise, regulations against pollution, unsafe work environments, and the like. But what to do with political ideologies that eschew such federal involvement, especially as the gap between parties widens? The “conservative” definition of General Welfare seems to be mostly limited to defense and increasing our country’s military capabilities. Perhaps it is time for our country to revisit and clarify its mission–to define and codify the Preamble as it applies to our country today. We certainly seem to need a moment to refresh and reestablish who we are and where we are going.