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Thinking about “General Welfare” in the Preamble

My L&L colleague Mike Rappaport mused last week “On the Relevance of the Preamble to Constitutional Interpretation.” I have a couple of thoughts in response.

First, I agree entirely preambles do not confer additional powers to those granted or recognized in a statute or constitution. They serve to aid interpretation of the substantive provisions of a legal text when needed to do so.

When necessary, however, an officially adopted preamble can be extremely helpful in construing legal texts. The late Antonin Scalia warred against judges using legislative intent or legislative history to construe legal texts not because knowing of the purpose for which decision-makers adopted a provision does not help judges construe texts, but because decision-makers did not speak authoritatively in those sources.

Officially-enacted statements of purpose avoid that problem. They provide purposes expressly endorsed by the enacting body itself. To be sure, not even an official-enacted statement of purpose would allow a judge to ignore the meaning of an otherwise clearly-written legal text. Nonetheless, understanding authorial purpose for a text can be critical to reading a text honestly.

That said, I think I’m more sanguine than Rappaport regarding the meaning of the preambulary phrase, “to promote the general welfare.” To be sure, Rappaport does not suggest the phrase has no discernable meaning at all—only that the phrase is “often unhelpful” because it “requires interpretation.”

Let’s think about the meaning of “general welfare” in the preamble alongside with its meaning in the first clause of Article 1, 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.”

First, promoting the “general welfare” stands in relation to its antonym, that of promoting a particular or limited welfare. Promoting the general welfare certainly rules out promoting the welfare of particular individuals or factions.

We could stop at that point if reading the clause in a state constitution: “general welfare” would simply mean “public welfare” in the sense of state police powers.

The national government, however, does not have police powers. A reasonable reading of the U.S. Constitution’s preamble identifies how “general welfare” differs qualitatively from its meaning in a state constitution.

To state the obvious, promoting “general welfare” means promoting “national” welfare. This contrasts not only with promoting an individual’s or faction’s welfare, but contrasts with promoting particular regional, state, or local welfare.

We can see this in several ways. First, unlike today when we refer to the “national” government, at the time of the adoption of the U.S. Constitution the national government was often referred to as the “general” government. For example, James Madison begins Federalist 41 by asking “Whether any part of the powers transferred to the general government be unnecessary or improper.”

Beyond this, the preamble itself provides evidence. The preamble situates the Constitution in a continuing project with its first statement of purpose, “to form a more perfect union.”

The Constitution exists to perfect—to mature—the already existing union.

This continuing project certainly seeks to perfect the form of the union articulated in the Articles of Confederation. The Articles’ preamble situated its provisions in “confederation and perpetual union.” Article III of the Articles of Confederation affirms that “The said states hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare . . .”

Note here that Union began as early as the Declaration of Independence, and perhaps even earlier. By the time of the Constitution, the Declaration’s one people of the United States of America had become united in a new frame of government. Strengthening the national, or general, government to form a more perfect union was a manifest purpose of the Constitution.

Nonetheless these still were the people of the united states. Sovereignty was split.

“General welfare” for the nation, then, differs qualitatively from “general welfare” at the state level. The signature distinction is qualitative not quantitative: State general welfare does not become an issue of national general welfare simply because a local purpose can be quantitatively aggregated across each of the states. That’s still local.

General national welfare pertains to purposes and policies states could not achieve on their own in union due to systemic cooperation or coordination failures across the states. The most obvious of these pathological interstate incentive structures are the several “prisoners’ dilemmas” states faced under the Articles of Confederation, pathologies the “more perfect union” of the Constitution would remedy.

For example, foreign nations could induce tariff competition between the states. This interstate dynamic prevented states from obtaining revenues from tariffs. Centralizing power over tariffs in the national government responded to the pathological incentives states faced, allowing revenues to be raised from tariffs on imports.

While the most obvious examples, the prisoners’ dilemma does not exhaust the types of pathological interstate incentive structures. States faced coordination failures in battle-of-the sexes and stag hunt games among themselves themselves, cooperation failures in “chicken” and congestion games, as well as interstate prisoners’ dilemma games in numerous policy domains. In solving coordination and cooperation failures between the states, the Constitution’s new “general government” promoted the general, or national, welfare.

Note how this leads naturally to the general welfare clause in Article 1, Section 8. Contrary to the Madisonian reading, the taxing and spending provisions do not become superfluous by being limited to the other powers explicitly stated in that section. At the same time, the taxing and spending provisions do not provide carte blanche to the national government to do anything states can do, except aggregated to the national level.

Rather, the clause confers an additional national power to provide for the general national welfare in ways that states cannot. A judicially-applicable rule would ask something like this: What pathological incentive structures do states face deterring them separately from achieving the welfare of their people in this policy area? If the states cannot implement policies because of interstate pathologies, then and only then would the general welfare provision of Article 1, Section 8 confer authority. But solving interstate pathologies, while allowing states separately to rule themselves in the absence of those pathologies, is exactly why the national Constitution was adopted.

Reader Discussion

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on March 07, 2019 at 10:32:05 am

As an originalist, Rogers is over-thinking this.

At the time the Constitution was being drafted, everyone knew that George Washington, leader of the Continental Army, would be the first president. "Promote the General Welfare" was just a fancy way to talk about providing him with a social safety net.

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nobody.really
on March 07, 2019 at 13:06:01 pm

"...social safety net."

Not to mention some snazzy uniforms; but no pension. Hmmmm!

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gabe
on March 07, 2019 at 15:51:13 pm

You mentioned the SSN in comments to another recent post. I am sure you understand the meaning of that term (I also understand you are using it jokingly in this instance). A safety net is used by trapeze artists and tightrope walkers, among others, to prevent them from being killed if they fall. It does not restore them to the trapeze or tightrope. It does not undo the fact that they fell, it does not restore their reputation to its pre-fall state, nor does it always prevent injury. Its sole purpose is to prevent the ultimate worst outcome: death. (I doubt it even makes them better trapeze artists or tightrope walkers).

Isn't that the same purpose, mutatis mutanis of the SSN? Wasn't Social Security the original US SSN? Wasn't its purpose only to prevent utter, abject destitution? Does it not already serve that purpose adequately? You seem to conceive the net not as a net but as a floor. And not as a bare floor, but one furnished with very nice furniture. You can urge such a generous welfare system; plenty of people do. But it can't be called a safety net (any more than Soc Sec can be called insurance).

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QET
on March 07, 2019 at 18:24:44 pm

An interesting alliteration regarding the definition of "general welfare" in the national constitution versus the use of the term in a state constitution. Mr. Rogers says the reading of the term would stop at the point it could be construed to mean "public welfare" as in the case of the state's police powers. The very next paragraph makes a statement I find quite surprising: "The national government, however, does not have police powers". Really? Does Rogers imply that agencies such as the FBI or the U.S. Marshals are constitutionally illegitimate? Perhaps ICE cannot arrest individuals illegally crossing our borders or overstaying visas in violation of federal law, since by his reasoning the constitution confers no police powers on any agency tasked to enforce federal law. His following arguments do not logically make up for the contradictory position he takes vis-a-vis general vs. public welfare and the national vs. state constitutional delegated powers.

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Edward Hee
on March 07, 2019 at 20:37:07 pm

Perhaps, roger's intended to say that at the time of Ratification, the general government did not have police powers even in the fullest meaning of that term.

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gabe
on March 08, 2019 at 11:53:33 am

And to this very day, promoting the generals' and admirals' welfare seems to have become chief objective of government. The rest of us are just expendable spear carriers in this game.

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EK
on March 08, 2019 at 12:01:20 pm

To this very day the Supreme Court continues to say that it does not believe the general police power was one of the powers delegated to the central government in the original Constitution or in any of its subsequent amendments.

Of course, our Sanhedrin are telling us the truth. It took them 50 years between 1925-75 to usurp the general police power on a case by case basis. No one gave it to them; they took it.

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EK
on March 08, 2019 at 17:31:38 pm

Interstate pathologies ? A trained rat could drive a bus through that phrase. For example, as things become more 'interconnected' the 'diagnosis' of these pathologies will lead to new ones being 'found'. Git my meaning?

Sorry but original intent better be used or the usual crowds will slam through more or less anything, and that includes Roosevelt, Roberts, and more.

Notice how the mountain keeps getting higher.

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Keith Schwartz
on March 08, 2019 at 17:41:33 pm

First, the committee of forms, during the last few days before the signers gave us the 1787 Constitution for the USA, limited the U.S. preamble to 51 words from the Massachusetts model with 263 words (by John Adams 1780). Here it is:

"The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts."

Thank goodness Massachusetts cannot impose their preamble on Louisiana or the U.S. or We the People of the United States.

Second, the signers as well as the nine state who ratified the U.S. preamble and its articles on June 21, 1788, presented a proposition to pursue, in perpetuity, responsible liberty. They left it to future generations to read the essence of the U.S. preamble and pursue statutory justice.

One of the principle reasons they minimized the U.S. preamble is that they knew slavery was wrong if applied to them as individuals but could not negotiate emancipation of the slaves. Despite the Civil War, I am grateful to the signers and the nine states that established the USA. They left it to me to choose to collaborate for responsible liberty, and that is what I do. Many fellow citizens do the same according to their hard-earned opinions.

Therefore, even though I would never change a word of the U.S. preamble, I interpret its phrases so that it appears to me they support the civic, civil, and legal intentions of the U.S. preamble and collaborate to improve my understanding. I think prosperity promotes responsible liberty more than welfare despite the 1787 selection of "welfare." Some fellow citizens could not care less about responsible liberty.

I think prosperity promotes responsible liberty more than welfare does and do not think the 1787 choice of "welfare" instead of "prosperity" is of just importance. The fellow citizen who cannot achieve prosperity should receive aid until his or her responsible liberty is feasible.

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PHILLIP BEAVER
on March 11, 2019 at 19:32:31 pm

In the main, I like Rappaport's analysis. But, I think the meaning of "general welfare" as used by the men who wrote the Constitution is the definition we should be looking for. And that tends in the direction of Cicero's view that "Salus populi suprema est lex", one which is compatible with biblical principles relating to the people's happiness.

Cicero's famous quotation has been translated variously to mean "salvation", "happiness", "well-being", "welfare", and "good". Interestingly, the Old and New Testaments are full of references to the people's happiness--individual and public--in relation to their wisdom, virtue and reliance on God--the three qualities Americans believed necessary for a nation to be governed justly. The safety and happiness of the people seem to be a major theme running through the Bible and classical literature.

That is why 18th Century Americans considered Liberty and all its blessings to be the outcome of wisdom and virtue, and Wisdom and Virtue to be the outcome of obedience to God. Cause and effect, cause and effect.

These ideas permeate the writings of the American people before and after Independence, as shown by the very abbreviated sampling below. As many 18th Century Americans were either descended from Protestant exiles or were themselves exiled by tyrannical European governments, their political ideas were laced with principles handed down from the Protestant Resistance Movement, either through the pulpit or from books and letters.

One of the most influential writers was the anonymous 16th Century author of "Vindiciae, Contra Tyrannos: or, Concerning the Legitimate Power of a Prince over the People, and the People over the Prince". His identity is still a secret, but an excellent and readable translation edited by George Garnett (Cambridge University Press) is probably still in print. This is where I first encountered references to "the welfare of the people".

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt."
Samuel Adams, Essay in the Public Advisor, 1749

"I think with you, that nothing is more important to the public weal, than to form and train up youth in wisdom and virtue,"
Benjamin Franklin, Letter to Dr. Samuel Johnson, 1750

"The security and happiness of all the members composing the political body must be the design and end [of government]."
Jonathan Mayhew, Election Sermon, 1764

"The end of government being the good of mankind, points out its great duties: It is above all to provide for the security, the quiet, and happy enjoyment of life, liberty, and property. There is not one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people."
James Otis, The Rights of the British Colonies Asserted and Proved, 1764

"Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for the profit, honor or private interest of any one man, family, or class of men..."
John Adams, Thoughts on Government, 1776

"The transcendent law of nature and of nature's God...declares that the safety and happiness of society are the objects at which all political institutions must be sacrificed."
James Madison, The Federalist Papers, 1788

Although the Founders' generation believed it is our duty to care for family members who are indigent (widows, orphans, disabled veterans, elderly, sick or cannot provide for themselves), they did not believe we should support those who are able-bodied but refuse to work, or pursue their own self-destruction (drunkenness, gambling, debauchery, crime, etc.). They also believed it is society's duty to provide for those who have no family to help them, either publically or privately, but not if they were dissolute.

They thought young people should be taught a trade in addition to basic academic skills so they could fulfill their duties as citizens. An amazing number of the Founders thought girls should receive the same education as boys so they could be better wives and mothers. Many women ran their own businesses, including print shops that published political books, tracts and pamphlets. Americans worked hard because there was no ruling class to hold them down after Independence, and they wanted to improve their circumstances, and once the nation was established the economy took off like a shot because there was nothing stopping them from prospering from their labors.

In this way, society was not plagued by the kind of poverty that exdisted in Europe and elsewhere. This exemplifies in one aspect the general welfare of the people mentioned in the Preamble to the Constitution.

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Karen Renfro

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