David S. Schwartz, Mr. Madison’s War on the General Welfare Clause, 56 UC Davis L. Rev. 887 (2022).
Abstract
The General Welfare Clause of Article I, section 8, clause 1 of the Constitution (“Clause 1”), though ambiguous, is most naturally read to grant Congress the power to “provide for … the general welfare”—that is, to legislate on all national matters. James Madison understood this and recognized that this broad interpretation of Clause 1 presented a major textual obstacle to his tendentious “enumerationist” interpretation of federal powers: that the “the essential characteristic” of the Constitution was to grant only limited enumerated powers to the federal government. Madison therefore waged a 50-year campaign to render the General Welfare Clause “harmless,” as an essential element of his broader project to win his preferred enumerationist interpretation and erase the nationalist interpretations of his one-time Federalist allies. Madison achieved a partial victory in this political struggle for constitutional meaning, by taming the General Welfare Clause and establishing enumerationism as an ideology to which we pay continued lip service. But his arguments against the nationalist interpretation of the General Welfare Clause, based primarily on text and Framers’ intent, were circular, fallacious, or disingenuous. The weakness of Madison’s arguments on this critical issue of federal power may account for his puzzling drift toward embracing “compact theory”—the view that the states, and not the sovereign people of the United States, are the true parties to the Constitution. Madison’s war on the General Welfare Clause casts doubt on the practice of treating his partisan views on enumerationism as authoritative statements of the Constitution’s original meaning.
