powers, but an indefinite one, subject to particular exceptions.” Toward the end of his life, he added: “With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” And of course, as Madison elsewhere wrote, if the federal government really had been intended to carry out whatever action might promote the general welfare, what was the point of listing its specific powers in Article I, Section 8, since this superpower would have covered all of those anyway?
The typical reply to this argument, if one is forthcoming at all, is that Alexander Hamilton had a different view of the “general welfare” clause. Indeed he did, but what does that prove? Hamilton was dramatically out of step with most of the other delegates to the Constitutional Convention. He was also inconsistent in his views, saying one thing before the Constitution was ratified and another after ratification. In his 1791 Report on Manufactures, he denied that the spending authority of Congress was confined to the powers enumerated in Article I, Section 8, laying out a broad array of areas he wanted to see receive government funding—precisely the areas he denied the national government would have jurisdiction over when he wrote Federalist No. 17 and Federalist No. 34 several years earlier.
Patrick Henry raised precisely this concern as the ratification of the Constitution was being debated in Virginia: wasn’t “general welfare” a dangerously open-ended phrase that would permit the federal government to do whatever it wanted, since government officials could blandly claim that all its measures were intended to promote the general welfare? Supporters of the Constitution gave Henry a definitive answer: no, “general welfare” did not and could not have such a broad meaning.
Now, isn’t our Constitution a “living” document that evolves in accordance with experience and changing times, as we’re so often told? No—a thousand times no. If we feel the need to change our Constitution, we are free to amend it. In 1817, James Madison reminded Congress that the Framers had “marked out in the [Constitution] itself a safe and practicable mode of improving it as experience might suggest”—a reference to the amendment process. But that is not what advocates of a so-called living Constitution have in mind. They favor a system in which the federal government, and in particular the federal courts, are at liberty—even in the absence of any amendment—to interpret the Constitution altogether differently from how it was understood by those who drafted it and those who voted to ratify it.
Leave aside the alleged problem of determining exactly what the Framers intended by this or that constitutional clause—supporters of the living Constitution must be able to figure out the original intent well enough if they are so sure we need to evolve away from it. If the people agreed to a particular understanding of the Constitution, and over the course of the intervening years they have performed no official act (such as amending the Constitution in accordance with their evolved ideas) reversing that original understanding, by what right may government unilaterally change the terms of its contract with the people, interpreting its words to mean something very different from what the American people had all along been told they meant?
A “living” Constitution is just the thing any government would be delighted to have, for whenever the people complain that their Constitution has been violated, the government can trot out its judges to inform the people that they’ve simply misunderstood: the Constitution, you see, has merely evolved with the times. Thus, as in Orwell’s
Animal Farm
, “no animal shall sleep in a
The typical reply to this argument, if one is forthcoming at all, is that Alexander Hamilton had a different view of the “general welfare” clause. Indeed he did, but what does that prove? Hamilton was dramatically out of step with most of the other delegates to the Constitutional Convention. He was also inconsistent in his views, saying one thing before the Constitution was ratified and another after ratification. In his 1791 Report on Manufactures, he denied that the spending authority of Congress was confined to the powers enumerated in Article I, Section 8, laying out a broad array of areas he wanted to see receive government funding—precisely the areas he denied the national government would have jurisdiction over when he wrote Federalist No. 17 and Federalist No. 34 several years earlier.
Patrick Henry raised precisely this concern as the ratification of the Constitution was being debated in Virginia: wasn’t “general welfare” a dangerously open-ended phrase that would permit the federal government to do whatever it wanted, since government officials could blandly claim that all its measures were intended to promote the general welfare? Supporters of the Constitution gave Henry a definitive answer: no, “general welfare” did not and could not have such a broad meaning.
Now, isn’t our Constitution a “living” document that evolves in accordance with experience and changing times, as we’re so often told? No—a thousand times no. If we feel the need to change our Constitution, we are free to amend it. In 1817, James Madison reminded Congress that the Framers had “marked out in the [Constitution] itself a safe and practicable mode of improving it as experience might suggest”—a reference to the amendment process. But that is not what advocates of a so-called living Constitution have in mind. They favor a system in which the federal government, and in particular the federal courts, are at liberty—even in the absence of any amendment—to interpret the Constitution altogether differently from how it was understood by those who drafted it and those who voted to ratify it.
Leave aside the alleged problem of determining exactly what the Framers intended by this or that constitutional clause—supporters of the living Constitution must be able to figure out the original intent well enough if they are so sure we need to evolve away from it. If the people agreed to a particular understanding of the Constitution, and over the course of the intervening years they have performed no official act (such as amending the Constitution in accordance with their evolved ideas) reversing that original understanding, by what right may government unilaterally change the terms of its contract with the people, interpreting its words to mean something very different from what the American people had all along been told they meant?
A “living” Constitution is just the thing any government would be delighted to have, for whenever the people complain that their Constitution has been violated, the government can trot out its judges to inform the people that they’ve simply misunderstood: the Constitution, you see, has merely evolved with the times. Thus, as in Orwell’s
Animal Farm
, “no animal shall sleep in a
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