-----Original Message-----
From: Brian Holtz [mailto:brian@...]
Sent: Thursday, September 16, 2004 12:47 AM
To: 'lpc-candidates@...'
Subject: RE: [LPC-candidates] "general welfare" provision of preamble
construedvery liberally


Jim Eyer wrote:

> can anyone give some guidance about how I should
> investigate the "original intent" with regard to
> the general welfare provision?

The "general welfare" mention in the Preamble is of course lacking in legal
force. The relevant jurisprudence has involved the "general welfare" mention
in Art I Section 8.

The "general welfare" clause there is part of an infinitive phrase ("to pay
... and provide ...") that simply _modifies_ the power to tax granted by
subsection 1. This is obvious to anyone 1) who knows English grammar, 2)
who compares the ridiculously broad sweep of "the common defense and the
general welfare" with the excruciatingly detailed grants of power that come
in the subsequent subsections, or 3) who is aware that at the Convention the
Hamiltonians tried surreptitiously to convert the comma after "excises" to a
semicolon, so that the modifying infinitive would become a description in
its own right of a Congressional power. As recently as 1936 the Court said
(US v. Butler) that "The government concedes that the phrase 'to provide for
the general welfare' qualifies the power 'to lay and collect taxes'." It
was only the next year, after FDR's threat to pack the Court with justices
more sympathetic to the New Deal, that the Court completely reversed itself
(in NLRB v. Jones & Laughlin Steel Corp) and started using the interstate
commerce clause (_not_ the general welfare clause) to uphold regulating
everything in sight.

(I posted the preceding paragraph to Usenet in 1991 --
http://tinyurl.com/5e8eb -- and I've forgotten my source for the
comma/semicolon maneuver at the Convention.)

For more on the 1937 commerce clause about-face, see "The Court-Packing Plan
and the Commerce Clause" at http://tinyurl.com/62mz4. (Stern actually tries
to argue that the packing threat wasn't a significant cause of the reversal,
but the facts as he describes them are so contrary to his thesis that it's
not clear he really believes his own claim.)

Brian Holtz
Libertarian candidate for Congress, CA14 (Silicon Valley)
http://marketliberal.org