Limited Powers

by Don Boudreaux on January 4, 2011

in History, Law

The two lead letters in the Jan. 5, 2011 edition of the Wall Street Journal convey important historical information about the U.S. Constitution.  Here are those letters:

Regarding “ObamaCare and the General Welfare Clause” (op-ed, Dec. 27) by Randy E. Barnett and David G. Oedel: The wonder is that this key statement could need any help considering that 221 years ago James Madison clearly identified some common misunderstandings of the general welfare clause and explained what the Founders meant, clearly, thoughtfully, and I’m sure he felt finally, when in Federalist Number 41 he wrote: “Some . . . have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the [Constitution’s] power ‘. . . to provide for the common Defense and general Welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.

“Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it. . . . But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?”

And following that semicolon is a list of 17 other congressional powers, from “borrow money on the credit of the United States” to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” but not a word about health care, environmental protection, education, housing, etc.

Too bad the father of the Constitution did not anticipate future misunderstandings of the Commerce Clause.

Arnold H. Nelson


In an 1817 letter to Albert Gallatin, Thomas Jefferson said “that Congress had not unlimited powers . . . to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers.”

ObamaCare is not unconstitutional due to the misapplication of the descriptive yet nonempowering phrase “general welfare.” It is unconstitutional because none of the 18 enumerated powers grants Congress the power to be involved in health care. It’s that simple.

J. Michael Hanselman

Frederick, Md.


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