This is the sixth in a series of anticipated posts closely reading the Constitution of the United States for homeland security implications. Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text highlighted.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
There are two references to “general welfare” in the Constitution. In addition to the Preamble, there is the following from Article I, Section 8:
The 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; but all Duties, Imposts and Excises shall be uniform throughout the United States.
Historical, political, and legal understandings of general welfare differ. Madison argued that the Constitution was explicit regarding narrow enumerated powers. Hamilton used the general welfare references to justify much broader authority by the national government.
Prior to United States v Butler (1936) the Supreme Court seemed convinced by Madison. But in that New Deal-related decision the majority found:
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. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.
The ghost of Hamilton has seemed to haunt the Supreme Court ever since.
Accordingly taxing and spending — and evidently borrowing — are not limited by enumerated powers or the Tenth Amendment or in any other constitutionally required way. Madison’s ghost has, perhaps, been awakened from peaceful sleep. Strange things have been seen at Montpelier.
From this evolution of the general welfare clause has emerged much of the contemporary federal apparatus including (it seems to me) Homeland Security, critical infrastructure protection, national preparedness, whole community resilience, FEMA grants, disaster assistance, and much more.