David S. Schwartz, University of Wisconsin Law School, has posted Recovering the Lost General Welfare Clause:
The General Welfare Clause of Article I, section 8, Clause 1 enumerates a power "to provide for the common defense and general welfare." A literal interpretation of this clause ("the general welfare interpretation") would authorize Congress to legislate for any national purpose, and therefore to address all national problems"including the COVID-19 pandemic"in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called "Spending Power," a power only to spend, but not to regulate, for national purposes. This article argues that both the text and the drafting history of the General Welfare Clause support reading it as a power to regulate on all national problems, such as environmental degradation, violence against women, or the COVID-19 pandemic. It is only our superficial ideological commitment to enumerationism "the doctrine of limited enumerated powers" that causes us to depart from the most evident textual interpretation of the General Welfare Clause. Recovering the lost General Welfare Clause is particularly important at this moment in constitutional history, when a conservative and supposedly originalist Supreme Court is poised to greatly constrict federal power to respond to pressing national problems in service of a tendentious and badly one-sided account of founding-era views on federalism.--Dan Ernst
