The Constitution authorizes a government of limited powers. Congress’s main legislative powers are enumerated in Article I, Section 8—there are only 18. But since the New Deal those powers have been read as authorizing Congress to do far more than was ever imagined for our first 150 years under the Constitution. This has led to effectively unlimited government.
To start addressing the problem, a new House rule requires members of the 112th Congress to cite specific constitutional authority when introducing any new bill or program. Out of concern that many members will automatically invoke one or more of three broadly worded and widely misunderstood clauses in Article I, Section 8—the General Welfare, Commerce, and Necessary and Proper Clauses—here is a brief summary of how each was understood by the Framers.
- Contrary to modern readings, this clause does not grant Congress an independent power to tax and spend for the “general welfare.” If it did, there would be no need to enumerate any other powers.
- Rather, it authorizes Congress to enact the specified taxes for the specified purposes—headings more precisely defined by the 17 enumerated powers or ends that follow. And Congress’s power to tax for the “general welfare” precludes it from taxing to provide for special parties or interests.
- Here too the Commerce Clause does not authorize Congress to regulate anything and everything, which again would put an end to the idea of a government of enumerated and thus limited powers.
- Under the Articles of Confederation, states had erected tariffs and other protectionist measures that were impeding interstate commerce. To end that and ensure free interstate commerce, Congress was given the power to regulate, or “make regular,” such commerce—the main sense of “regulate” at the time. Were Congress thought to have the all but unbounded regulatory power it exercises today, the Constitution would never have been ratified.
- This clause grants Congress the means to execute its enumerated powers or ends and those of the other branches. It adds no new ends. And the means must be “necessary and proper.”
- That means they must respect the Constitution’s structure and spirit of limited government; they must respect federalism principles; and they must respect the rights retained by the people.