Is Welfare Unconstitutional?

1. The document itself: Though few realize it, the Constitution is a very defined and extremely straight forward text with many definitions inherent in the common logic behind it.

• The"necessary and proper" clause of Article I, Section 8, enumerated power of Congress #18 - which mandates that the aforementioned 17 enumerated powers are further defined and expanded upon through implications though limited on the whole by a "necessary and proper" relationship.  McCulloch v. Maryland defined this as to Congress may enact legislation within the powers (1) specifically enumerated by Article I, Section 8 and (2) that which reasonably "necessary and proper" in "carrying into execution" these powers and those elsewhere listed to Congress in the constitution (ie. certain amendments).  In other words, Congress is strictly defined to very specifically enumerated powers and that which draws a reasonable relationship to these specific powers as a "means" of carrying into play their execution. Oddly enough much of what Congress does today is neither enumerated nor reasonably implied through clause 18 (ie. the use of public monies for charity on the national level - what we know today as social welfare handouts)
• English Common Law terminology within the Constitution - Reasoning that the framers were men trained in English Law and men who spoke with a common understanding the language and terms of English Common Law, it is only reasonable to read Common Law terminology within the language of the Constitution in light of its Common Law meaning.  The Supreme Court implied this under John Marshall in United States v. Wilson and ruled such specifically in Smith v. Alabama half a century later (also later reffered upon by United States v. Wong Kim Ark). Due to these rulings, precedence mandates that we interpret Common Law terminology in the Constitution in light of its Common Law definition. Examples of such Common Law terminology
• • Habeas Corpus - the rule requiring a reasoning for the detainment of a person
  • High Crimes and Misdemeanors - the standard of impeachment which was so recently misconstrued and taken out of context in the Clinton Impeachment trial. This term, roughly meaning a serious offense or a felony, was established in 1388 before being thoroughly and specifically defined shortly afterward (and yes, it does very clearly include perjury within its definition. See here.)
  • Bill of Attainder - Congress cannot legislatively bestow a punishment upon a person (including a fine such as in Censure).
  • Emminent Domain - compensation for lands acquired by the government

2. The Framers Themselves: What the framers themselves thought about the Constitution, their thinkings in general about government, their intentions on the terminology and wordings of the Constitution as expressed at the Constitutional Convention, and their writings related to the document. Examples:

• The Federalist Papers - Madison, Hamilton, and Jay defend and explain in among the most detailed writings of the framers about the Constitution known to us
• Madison's notes on the Constitutional Convention - James Madison kept detailed notes of the debates at the Constitutional Convention outlining who spoke and what they spoke about. These notes provided detailed evidence behind the intentions of the framers with each clause included within the document.
• Ratification Writings - Writings about the Constitution - both for and against it - during the debate for ratification. The Federalist Papers are also viewed as "ratification era writings"
• Writings by individual framers - Jefferson's letters to Madison from France, reactions, journals, and notes by other prominent statesment of the era, and speeches made by these men in the time period
• Background ideologies of the framers - The sources of the framers educations and theories. Franklin, for example, was known to have had meetings with prominent social thinkers of the day such as Adam Smith (The Wealth of Nations) and possibly Voltaire. John Locke's ideas on government and social contracts (Second Treatise on Government) were well known and to the framers and provided a base for many of their theories. Other revolution era writings such as Paine's Common Sense display the thinkings of the period.

3. The Constitution implemented, 1787-1834: This period from the writing of the Constitution to the end of the Marshall court shows the institution of the new government by the men who founded it (and reflecting on their intentions of its implementation).

• Court Cases of the era -
• • Marbury v. Madison
  • McCulloch v. Maryland
  • Gibbons v. Ogden
• Founding Fathers who served as President
• • George Washington
  • John Adams
  • Thomas Jefferson
  • James Madison
• Congress, the Supreme Court, speeches, conflicts, and issues of the period

Overview:

Until the New Deal era, a general acknowledgement that individual social welfare, more specifically the use of public monies for the purpose of charity by the national government, was unconstitutional on the national level prevailed in government. Charity was known not to be an enumerated power nor one reasonably implied by the "necessary and proper" clause and therefore considered unconstitutional. Yet around the time of the New Deal, government began overlooking this clear unconstitutionality. The Supreme Court temporarily checked this until the Court Packing Scandal led to pro-welfare rulings by an incapacitated court, fearing dismantling by FDR and therefore under duress, in 1937.  Since then the use of public monies for charity, or social welfare, has expanded in what is reasonably termed direct defiance of the Constitution. This page will, using the three interpretive tools described above, demonstrate how today's social welfare state remains in direct defiance of the United States Constitution.
 

The Framers Speak:
Long has it been acknowledged that Congress's powers were limited as described above by Article I, Section 8.  Here the framers acknowledge this Section as a limiting factor, proving that today's misinterpretations, which allow full justification for practically anything Congress desires to do under the guise of this often misread and forgotten section, are both erronious and absurdly illogical.
 
Proof of intentional and strict limitations on the authority and power of Congress:
"[Congressional jurisdiction of power] is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any." - James Madison, Federalist 14
 
"The powers delegated by the proposed Constitution to the federal government are few and defined . . . to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce." - James Madison, Federalist 45
 
"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but
an indefinite one, subject to particular exceptions." - James Madison, 1792
 
Note the reference to "General Welfare." Please do not confuse this with "social welfare" as we know it today, or public charity. The two are distinctly different as will be addressed later in detail
 
"The Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient,’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed" - Thomas Jefferson, 1791
 
"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated." - Thomas Jefferson, 1798
 
    There we have it! Proof that both the Father of the Constitution and unquestionably our nation's foremost expert on the Constitution, James Madison, AND the Father of American Independence, Thomas Jefferson, specifically acknowledging Congressional powers to be strictly limited and defined - quite a long shot from today!
    One distinction must be noted though. Jefferson and Madison were by no means representative of the opinions of all the framers. They were both strict constitutionalists representative of those very fearful of the strength of the new government. For that reason I turn to the other side most represented in Alexander Hamilton - one that believed in a looser interpretation.
 
"This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended." - Alexander Hamilton, Federalist 83
 
Here Hamilton specifically acknowledges that all congressional powers are enumerated (necessary and proper relationships included as such an enumeration). Hamilton notes that the existance of these enumerations alone makes the notion that Congress has full and general legislative power to act as it desires for if such broad congressional power was intended, specifications of powers (the 18 enumerated powers) would be useless.
 
"No legislative act … contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid." - Alexander Hamilton, Federalist 78
 
This quotation furthers the above statement by acknowledging legislation contrary to the Constitution to be unconstitutional. Since powers of Congress are enumerated and done so binding Congress to these powers alone (necessary and proper related powers included), a power outside of these enumeration without reasonable relation must be contrary to the Constitution and therefore unconstitutional.
 
The Framers specifically on public charity:
 
"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." - James Madison criticizing an attempt to grant public monies for charitable means, 1794

Words of the Presidents: Aside from Jefferson and Madison, at least three other men who have the recognition of being President of the United States openly acknowledged social welfare to be Unconstitutional.
 
Spoken while serving as President...
 
While vetoing a social welfare charity bill one president stated:
"[I must question] the constitutionality and propriety of the Federal Government assuming to enter into a novel and vast field of legislation, namely, that of providing for the care and support of all those … who by any form of calamity become fit objects of public philanthropy ... I cannot find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States. To do so would, in my judgment, be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded." - President Franklin Pierce, 1854
 
And while vetoing a bill appropriating relief charity from public monies another president stated:
"I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit." - President Grover Cleveland, 1887
 
Perhaps the greatest irony in the issue of welfare came from a statement by the Father of Big Government, Franklin Delano Roosevelt. Roosevelt, a man known for giving in on his previous word and selectively compromising his beliefs, not to mention the Constitution, in pursuit of an agenda. Roosevelt took to the podium on March 2, 1930 to talk about states rights as Governor of New York. In this speech, printed in entirity on March 3, 1930 by the New York Times, he had this to say:
 
"As a matter of fact and law, the governing rights of the States are all of those which have not been
surrendered to the National Government by the Constitution or its amendments. Wisely or unwisely,
people know that under the Eighteenth Amendment Congress has been given the right to legislate on this particular subject¹, but this is not the case in the matter of a great number of other vital problems of government, such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare and of a dozen other important features. In these, Washington must not be encouraged to interfere." - Franklin Delano Roosevelt, 1930
 
Roosevelt went back on this statement not two years later as he was elected president and instituted the New Deal. In fact most of the key New Deal relief programs were immediately declared unconstitutional for the very reasons subject of this page.
 
¹ Note: FDR refers to Prohibition of Alcohol, which in 1930 was a legal power of Congress granted by now cancelled Amendment 18 and enacted by the Volstead Act. Speech transcribed in the New York Times, March 3, 1930.

What others have to say:
 
One day around 1830 Congress was considering a measure to grant a sum from the public money to a widow of a recently deceased veteran. The measure was expected to pass unanimously until a Congressman rose to the floor. It was none other than the famous frontiersman and lawmaker Davy Crockett:
 
    "Mr. Speaker, I have as much respect for the memory of the deceased, and as much sympathy for the sufferings of the living, as any man in this House. But we must not permit our respect for the dead or our sympathy for a part of the living to lead us into an act of injustice to the balance of the living. I will not go into an argument to prove that Congress has no power to appropriate this money as an act of charity. Every member upon this floor knows it.  We have the right, as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right to so appropriate a dollar of the public money. Some eloquent appeals have been made to us upon the ground that it is a debt due the deceased. Mr. Speaker, the deceased lived long after the close of the war; he was in office to the day of his death, and I have never heard that the government was in arrears to him. Every man in this House knows it is not a debt. We cannot, without the grossest corruption, appropriate this money as the payment of a debt. We have not the semblance of authority to appropriate it as a charity. Mr. Speaker, I have said we have the right to give as much money of our own as we please. I am the poorest man on this floor. I cannot vote for this bill, but I will give one week's pay to the object, and if every member of Congress will do the same, it will amount to more than the bills asks." - Congressman Davy Crockett ²
 
Crockett, the poorest man in Congress, donated a great portion of his salary to the widow - more than any other Congressman. The lesson: Congress often claims great compassion by offering the public money to charity yet when it comes time for private charity the very same people refuse. It is he who contributes under his own initiative to charity who is the truly compassionate, not he who gives the money of others only to credit himself. My message to Congress: Rather than claim compassion in fraud by appropriating the money of others as charity, engage in true compassion by giving from your own pocket!
 
² Note: transcribed in: The Life Of Colonel David Crockett, by Edward S. Ellis, published by Porter & Coates in 1884.

The "General Welfare" Clause - Misinterpretation at its finest.
Coming soon