The “general Welfare” clause as used in the preamble of the Constitution does not grant Congress any power and as used in Article I § 8 grants power exercisable only by at least a two thirds-vote of both Houses.
The “general Welfare” as used in the Preamble of the Constitution refers to the whole of the American people and does not grant Congress any power with respect to any class of People. Congress shall have no discretionary power to spend money in aid of the “general Welfare” as used in Article I § 8 cl. 1 of the Constitution pursuant to a power not expressly enumerated in the Constitution, unless its action is approved by a two-thirds vote of both Houses.
The term “general Welfare” is used in Article I § 8 cl. 1, which states, “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;….” In U.S. v. Butler, 297 U.S. 1 (Jan. 6, 1936), the Supreme Court ruled that the “general Welfare” clause as so used gave the Congress more powers than were expressly enumerated in the Constitution. In Helvering v. Davis, 301 U.S. 619 (1937), the Supreme Court said:
Congress may spend money in aid of the "general welfare." Constitution, Art. I, section 8; United States v. Butler, 297 U. S. 1 (1936) …. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law. "When such a contention comes here, we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress." [citations omitted] Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the times.
The purge of nation-wide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided….
While the decision in U.S. v. Butler was a loss to the strict constructionists, we believe it is unwise to trust a divided Congress with discretion over which specific programs are deemed to be for the common benefit or general welfare of the nation. To insure that discretion is exercised with as much unanimity as is reasonable, we have recommended a two thirds vote.
The desire to find more power in Congress than was intended by the Founding Fathers is illustrated by efforts to interpret the “general Welfare” clause in the Preamble of the Constitution as providing such power. The Preamble of the Constitution states, “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” In Carter v. Carter Coal Co., 298 U.S. 238 (May 18, 1936), four motions after the Butler decision, the Supreme Court held that the “general Welfare” clause in the Preamble made no grant of authority to Congress to legislate substantively for the general welfare “and no such authority exists, save as the general welfare may be promoted by the exercise of the powers which are granted.” The court also noted that the contrary position “often advanced and as often discredited” had no merit.
We believe a different court at a different time might change its interpretation of the Constitution. To ensure that this does not happen, we believe it needs to be made clear that the “often advanced” argument that the “general Welfare” clause in the Preamble confers power on Congress can never be accepted. We have reason for this concern based on what the Supreme Court did with the “general Welfare” clause in Article I of the Constitution.