Law and The General Welfare

What does "the general welfare" clause in the constitution mean? It is the most commonly used and referanced to part of the constitution; a great bulk of federal laws are legally "justified" based on it. But what does it actually mean, both logically and constitutionally? What were the general purposes of the constitution and the bill of rights within it? What are the 9th and 10th amendments for?

From a pure logical standpoint, the general welfare, emphasis on the word general, means that which benefits everyone in some way. So, in order for something to qualify as the general welfare, it has to be proven that it is mutually beneficial to everyone affected by it. But obviously there are many things that are not beneficial to everyone; things that benefits only particular interests or groups, don't benefit anyone at all or take away the welfare of everyone or a particular interest or group. There is an inherent degree of conflict between what individuals and groups consider to be their personal welfare and happiness. It should be clear, therefore, that most if not all government actions that are legally backed by claims of the general welfare are absurd.

It is entirely subjective to the individual as to what their personal welfare and happiness is - the steel worker has a different welfare than the farmer does, and if you subsidize one or the other in the name of "the general welfare", their interests are going to clash to a degree. For example, if you subsidize the agriculture industry, it will be at the expense of the steel workers and all of those in general who are not involved in agriculture, and therefore to claim that this is for "the general welfare" is an absurdity. Then, lets say that the steel industry demand a subsidy for themselves then. It's still not the general welfare, for it's at the expense of all non-steel industrialists. It soon becomes apparent that instead of these things being for the good of everyone, they are at the expense of everyone only to bestow some kind of perk on a special interest group.

If we take the case of a corporation or farm that wants to have the government subsdize them or put up a tariff to block their competitors, these types of things are commonly legally backed by a claim of the general welfare. The arguement essentiatially first claims that a tariff or subsidy will be beneficial to the general population (which is totally false under any sound logical and economic analysis), and therefore doing what amounts to giving special priviledge to particular industries and corporations is "for the general welfare". Anything from military-industrial projects to wars to welfare giveaways are all deemed as legitimate under the general welfare. It should be clear that none of such things truly are mutually beneficial to everyone. "The general welfare" has become nothing more then a mechanism for special interests to get priviledges and redistributions by equating their individual self-interest with the welfare of everyone. Thus, from a conceptual and logical standpoint, the notion of the general welfare is absurd. There is only one general welfare: the individual's rights.

Constitutionally, the legally positivist establishment generally takes an expansive and omnipotent view of the general welfare. The constitution is essentially "interpreted" to say: the government can do whatever it wants in the name of promoting the public good (which is the ultimate tyranny of utilitarianism, where any action is "justified" by claiming that it maximizes utility or functions for "the collective" - one may very well achieve utility for themself by robbing another person, but it would remain as a truth that it would be unjustified). But this is simply not what the clause was intended to mean and be. "The general welfare" is simply the constitutionally enumerated powers of the federal government - not some arbitrary extra powers that are vague and up in the air.

If the general welfare truly means what people tend to think it means, that the government can promote whatever it wants as long as it's for a vaguely defined "public good", there would be no point in having a bill of rights or a list of enumerated congressional powers. There are no extra governmental powers beyond that which is listed in its enumerated powers. There is no general welfare government power beyond enforcing the duties that have been enlisted to it already. The general welfare clause is thus merely a restatement or clarification that the government must attend to its already defined enumerated powers.

There is no logic in listing all of what congress can do, and then saying that congress can do whatever it wants in the name of the public. There would be no point in listing powers - if congress can do whatever it wants in the name of the general welfare, then any listing of powers and limits becomes null and void. The whole point of listing congressional and presidential powers was to define precisely what the bounds of government powers are, and therefore anything not listed is not a power. The whole point of the bill of rights was to expressly list what the government cannot do. The whole point of the constitutional contract was to limit the government's powers by expressly listing them, declaring that the federal government must carry out those powers (the point of the general welfare clause) and declaring that they cannot go beyond those powers, that they cannot breach a particular list of rights (the point of the bill of rights) and cannot take any action at all in violation of other unlisted rights that do not conflict with the enumerate powers (the point of the 9th amendment).

Obviously, since they couldn't list every single right and political issue in the world, they adopted the 9th and 10th amendments to expressly clarify that the government cannot claim any powers beyond that which is enumerated to it - and that it cannot legitimately lay claim to any new powers by pointing to the fact that a particular right is not listed in the bill of rights. The whole point of the 9th amendment is to ensure that there indeed are extra, common sense natural rights that the government cannot violate, and thus the government must restrict itself to the powers enumerated to it. In other words, for example, under the 9th and 10th amendments, the government couldn't constitutionally bug random american citezen's homes with spy equipment, just because the bill of rights doesn't say the word "privacy". These basic constitutional definitions become meaningless and in the back-burners as soon as we accept that the government can do things beyond its enumerated powers for "the general welfare". Afterall, the main positivist arguement used in favor of federal drug prohibition is actually the general welfare and commerce clause. Pretty much anything one may oppose that the federal government does is "backed" by either a commerce clause arguement or a general welfare arguement.

It is often countered that the courts are the final arbiters and we have to accept their decisions. Others say that the constitution is a "living, breathing document" that has no set meaning. But the proper role of a court is not to tell you what the law means (ipso facto legislate), but to apply the law that already exists to individual situations. What is elastic is not the law itself, but the situations that the law is applied to. But if we grant courts the power to arbitrarily tell us what the law is (I.E. make up new meanings for a law, I.E. make new laws, I.E. courts legislating), to elastically stretch the law into the arbitrary, then we have no reason to support the court's "authority" when it is acting outside of the legitimate bounds of that authority. "The general welfare" is generally the lightning-rod that allows this to happen.

It must be said that the constitution is not a blank canvas for us to arbitrarily paint on, it is an already finished work of art that, while most certainly imperfect and thus flawed, has a definite function, intent and meaning. By conceding to the courts the power to ipso facto legislate, by using the constitution as a piece of wax to empower the government to do anything it wants so long as the general welfare is the intent, you have broken the constitutional chains on the government. It should be obvious that "the general welfare" can be abused to push for things that the constitution does not enumerate. To not aknowledge this at all, to simply "trust" the government and the courts to function well while having the power to make "the general welfare" mean whatever they want it to, is suicide. The result is that the courts can now make up new laws (instead of applying the already existing laws, which is what the courts are supposed to do) by appealing to a vague and subjective general welfare.

Put it this way: Lets assume that the government can do anything to "promote the general welfare". Then, lets say that the government itself defines what the general welfare is. Well, as a logical consequence, the government can say "killing red-heads promotes the general welfare", or anything of that sort, and get away with it. But you see, our constitution has unemerated powers that it cannot go beyond. It should be obvious that if the federal government has the "power" to take any action with the intent of the "public good" and to determine what the "public good" is itself, it not only will inevitably favor itself in determining the "public good", and it not only will inevitably side with particular special interests in the public over others, but the government can now do anything it wants under an abuse of the general welfare clause.

Using a broad and vague "general welfare" for nearly everything usurps the constitutionally enumerated powers of the government. Having congressional powers listed is pointless if the general welfare clause truly means what the positivists insist it does. If we accept this statist juxtoposition of the general welfare, than the constitution quickly becomes a dead letter. I will repeat this one more time: The constitutional meaning of "the general welfare" is that congress must fulfil its already defined constitutionally enumerated powers. It does not give new powers. If we allow the government to act beyond those powers in the name of "the general welfare", we give omnipotent power to the government, no joke.

Further, in all of this, people rarely take the time to look at the 10th amendment. The 10th amendment reserves all powers that are not enumerated to the federal government either to the states or to the individual people themselves. This essentially means that anything beyond congress's enumerated powers under Article I Section 8 of the constitution is defacto unconstitutional. This was a very wise Jeffersonian addition to the constitution that has long since been completely obliterated by positive laws derived from erroneous and expansionist arguements about "the general welfare" and commerce clause.

In short, by giving the government such open and broad powers to "interpret" its own powers under "the general welfare", the government will inherently be inclined towards an expansive interpretation of its own powers. Any (correct) view of a limited interpretation will be rejected. Thus, the legally positivist interpretation of the constitution effectively nullifies both the 10th amendment and Article I Section 8 of the constitution. As a result, not only are the states and localities completely usurped, but the government in general has now been broken free of the chains of constitution itself. The federal government can now expand and make new laws as it pleases so long as "the general welfare" is the intent.

Lastly, in the spirit of Lysander Spooner, it must be noted that at a certain point, even the constitution becomes meaningless and a dead document not only in the sense that it is not enforced as a contract anymore, but also in the sense that there is ultimately a natural law that even the constitution cannot usurp. If the constitution said the opposite of what it says in the 1st amendment, that a state religion could be established or that the government could control the press, it would still be wrong. It is not constitutions themselves that are where rights and just laws comes from - good constitutions are merely reflections of the natural law. They are never perfect documents, and thus there are times when even something that is "constitutional" or generally legal under the positive law is absolutely "illegal" by the natural law, by common sense ethical standards. Thus, while the good restraints imposed by the constitution are beneficial and should be preserved, all positive law is ultimately subject to an outside ethical standard and must be judged in such a way. The positive law must always be judged by the standards of reason and ethics, no matter how popular or legally established of a precedent it may be.