Schwartz on the General Welfare Clause

Former LHB Guest Blogger David S. Schwartz, University of Wisconsin Law School, has posted The Strategic Ambiguity of the General Welfare Clause:

Article I, section 8, Clause 1 enumerates a power "to provide for the common defense and general welfare." Conventional constitutional doctrine interprets this language"called the General Welfare Clause in this article"as conferring "The Spending Power," a power to spend, but not to regulate, for any and all national purposes. Yet on its face, the General Welfare Clause seems to grant a general power to legislate on all matters of national concern. This article argues that the historical rejection of this "general welfare interpretation" in favor of the spending power interpretation is dictated neither by the text nor drafting history of the General Welfare Clause. The General Welfare Clause first appeared during the Philadelphia Constitutional Convention as a proposal, overlooked by scholars, in a second report presented by the Committee of Detail on August 22, 1787 (two weeks after submitting its well-known first draft of the Constitution). The Committee proposed to add an unambiguous legislative authorization to legislate for "the general interests and welfare of the United States" at the end of the Necessary and Proper Clause. Over the next two weeks, that language was ambiguated and relocated to its final placement, at the end of Article I, section 8, Clause 1. The final version of Clause 1 is best understood as a prominent example of "strategic ambiguity," a deliberate choice by the Framers to employ ambiguous language to accommodate differences of opinion without resolving them. Here, the Framers held competing views on three related issues: whether the enumeration of powers was exhaustive or illustrative; whether the taxing power should be limited to identified purposes; and whether the new national government should assume the Revolutionary War debts of the states. The ambiguity of the General Welfare Clause was intended to leave interpretive space for the general welfare interpretation, among others.

–Dan Ernst