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The Necessary and Proper Clause

A “General Welfare” Clause

In the final weeks of the Convention, a couple more changes were made that provoked no controversy within the Convention but would later kick up a firestorm out of doors. In early September, a “Committee of Eleven”—which was composed of one member from each state (Rhode Island had never attended and two New York delegates had returned home, denying the state of a vote in the Convention)—added what seemed like an innocuous clause to the taxing power granted to Congress. It specified that taxes would be raised “to pay the debts and provide for the common defence and general welfare of the United States.” Similarly, in the last week of the Convention, the Committee of Style drafted a preamble for the Constitution which listed among the purposes for the Union: “to promote the general welfare.” Antifederalists would later claim that this phrase, “general welfare,” was so broad that it undid all of the restraining effects of the enumerated powers. Federalists replied that the phrase was no additional grant of power; in fact, it further restrained it. The “welfare” part of the phrase simply referred to the enumerated powers that followed, and the “general” part specified that funds could only be appropriated for national, rather than local, purposes. 

The history of how the “general welfare” clause came to be in the Constitution seems to support the Federalists’ version of the story. The phrase was not proposed as an addition to the Constitution until July 17. Roger Sherman (who consistently sought to limit federal powers throughout the Convention) objected to the indefinite powers given to Congress in the Virginia Plan. He proposed instead to insert language that empowered Congress to legislate “in all cases which may concern the common interests,” or the “general welfare,” of the union, “but not to interfere with the government of the individual states in any matters of internal police which respect the government of such states only.” He followed this proposal with another proposal to enumerate the powers of Congress. So the phrase was initially introduced as a way of limiting congressional powers to exclude interference in local or state matters. But both of Sherman’s proposals failed that day. 

On August 25, Sherman again suggested the phrase, this time for a different reason. He thought they needed “an express provision for the object of the old debts, &c.,” and therefore he moved to add a clause to the section empowering Congress to lay taxes. The clause would specify that these taxes were “for the payment of said debts, and for the defraying the expenses that shall be incurred for the common defence and general welfare.” The motion was soundly defeated, but only because the rest of the Convention thought the clause unnecessary. In other words, no one at the Convention (beyond some members from Connecticut) believed that this clause added anything to the meaning of that section which already enumerated the powers of Congress. But the Committee of Eleven which met in early September (and of which Sherman was a member) discreetly added a clause that was almost identical to the one that Sherman had unsuccessfully proposed a week earlier. 

Indeed, the “general welfare” clause was likely adopted into the Constitution without fuss or bother precisely because it closely mirrored the uses already made of those words in the Articles of Confederation. The words “general welfare” are used twice in the Articles of Confederation, and they are used twice in the Constitution, and in both cases they are employed for precisely the same reasons. Both documents use the phrase in their preambles, in order to clarify the purposes of the Union. And both use the phrase to explain the purpose of Congress’ taxing power. Madison pointed out these similarities in Federalist No. 41, and protested that no one had ever tried to construe the words in the Articles of Confederation as a general grant of power. After it was ratified, however, and throughout American history, those who wished to extend congressional powers beyond those that were enumerated would frequently appeal to the “general welfare” clause as their justification.