The Constitution and the Common Good
Part 3 in a series of responses to my critics
America’s founding fathers rejected the Puritans’ vision of a common good polity, but that does not mean that they rejected the idea of a “common good” per se. As I have indicated already, America’s founding fathers occasionally used the concept “common good” or “public good” or “general welfare,” but they meant by these terms something very different from the traditional “common-good” politics of the ancient city, divine-right monarchies, or the Puritan’s Bible Commonwealth. And they absolutely meant something very different from today’s progressive and reactionary proponents of the “common good.”
When it came time to establish state constitutions and governments and then a national constitution and government, the Americans used the related concepts of the “common good,” the “public good,” or the “general welfare” in a strictly limited sense. The “common good” was linked directly to the moral foundation of the American republic, namely, to the idea that the end or purpose of government is to protect the unalienable rights of individuals.
To the extent that the notion of a common or public good is a legitimate concept, it was understood by the revolutionary generation to be controlled by its ends and means. In the American context, the ends are set out in the Declaration of Independence (i.e., “to secure these rights”—the rights to “life, liberty, and the pursuit of happiness”) and in the Constitution’s Preamble (i.e., “to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defence, promote the General Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”), and the means are controlled by the Constitution’s enumerated powers. That much is settled.
Neither the Declaration of Independence nor the Constitution of the United States give government the direct and positive power to form the souls of men other than to make them free to become self-governing and self-reliant individuals. To repeat: the sole purpose of government according to the Declaration is to secure each individual’s inalienable rights of nature, not to make men virtuous, good, or pious. Limited ends require limited means. In a free society, individuals will become virtuous by virtue of being free. Freedom is the nursery of moral virtue and necessity is the spur of character formation.
In the 45th essay of The Federalist, James Madison, the father of the Constitution, declared, “The powers delegated by the proposed Constitution to the federal Government, are few and defined.” Article I, section 8 enumerates the federal government’s limited powers. There can be no doubt that the Constitution’s framers created a limited sphere of government power and a wide birth of freedom for individuals to live beyond the reach of politics but under the rule of law.
Madison’s tenth Federalist essay provides the fullest and clearest discussion of the founders’ notion of the common or public good. The Virginian clearly equates the “public good” in this essay with the protection of individual and minority rights. The problem, however, is that rival political, religious, and economic factions compete with one another for political power in order to force their view of the “common good” on the rest of society. This is the definition of majority tyranny. The ultimate result of “common-good” politics is the attempt of some ruling elite or majority faction to force on “every citizen the same opinions, the same passions, and the same interests” as was done in all classical and Christian republics.
But a political society organized around some one idea of the “common good” enforced by common passions, opinions, and interests is bound to fail for three reasons, according to Madison, because: 1) as “long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed”; 2) as long as man’s reason is connected to his self-love, he will pursue his own short-term self-interest rather than the good that is common; and 3) as long as there exists a “diversity in the faculties of men from which the rights of property originate,” there will always be wealth inequality and a diversity of views, particularly on moral, social, or religious questions. In other words, as Madison put it, the “latent causes of faction are thus sown in the nature of man.” The problem, of course, is that various factions will always attempt to gain political power in order to force their view of the “common good” on the society as a whole.
Madison’s solution to the inherent problem of faction is not the authoritarian politics of “common-good” homogeneity, which cuts against the grain of human nature, but it is the creation of a political system that limits and disperses the use of political power to protecting the rights of individuals. The “first object of Government,” according to Madison, is not to use the coercive force of the state to make men good or virtuous but to limit, channel, and control political power so as to protect the “different and unequal faculties” of men, particularly as they relate to acquiring “different degrees and kinds of property.” Federalist 10 is one of the most powerful critiques of “common-good” politics ever written.
But what of the Constitution’s “general welfare” clauses?
In Federalist No. 41, Madison provides a clear explanation of how to interpret the “general welfare” clause contained in Article I, section 8, which states: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” He rejects the charge by some Anti-Federalists that the “general welfare” clause grants Congress an “unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare.” As we’ve seen already, Madison understood the Constitution’s grant of powers to the federal Congress to be “few and limited.” The father of the Constitution did not think the “general welfare” clause gave open-ended powers to the federal government.
The proper interpretation of the Constitution’s “general welfare” clause and its relationship to the federal government’s power is, according to Madison, connected to and controlled by the enumerated powers that immediately follow the “general welfare” clause of Article I, section 8. Madison’s construction of the clause falls under the traditional legal maxim: “Designato unius est exclusio alterius” [i.e., “the designation of one is the exclusion of the other.”], which means, in the context of the American Constitution, that powers not enumerated are excluded. To be more precise, as Madison put it in Federalist No. 41:
Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity.
Four years later, Madison doubled-down in support of his view that the Constitution created a federal government of powers limited strictly to those enumerated in Article I, section 8. “The federal Govt. has been hitherto limited to the Specified powers,” he told Henry “Light-Horse Harry” Lee in 1792. But if the Constitution’s “means” and “objects are unlimited, the parchment had better be thrown into the fire at once.”
Almost four decades later, Madison was still beating the drum of limited, constitutional government by deflating the meaning of the “general welfare” clause. In his clearest statement on the subject, Madison told James Robertson, Jr. (April 20, 1831) that he always regarded the Constitution’s “General welfare” clause “as qualified by the detail of powers connected with them.” More importantly, he rejected entirely the unlimited, fill-in-the-blank interpretation that would cause “a metamorphosis of the Constitution into a character, which there is a host of proofs was not contemplated by its Creators.”
Madison’s miserly interpretation of the Constitution’s “general welfare” clause was still insufficient for some Anti-Federalists. During the debates over the ratification of the Constitution, the Anti-Federalists argued powerfully and convincingly against the “general welfare” clause of both the Preamable and Article I, section 8. The Constitution’s opponents understood that the notion of the “general welfare” differed from one man to another and would always be used to justify the expansion of government power. The Anti-Federalist “Brutus” from New York declared that the term “general welfare” was an open-ended and floating abstraction that no two men would define or apply in the same way. Brutus put it this way:
To provide for the general welfare, is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare; and both sides may be honest in their professions, or both may have sinister views. . . . The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.
And there’s the rub. Brutus was right. Virtually every bad law in American history since at least the New Deal was justified (directly or indirectly) either by Congress or the Supreme Court using the Constitution’s two “general welfare” clauses.
The disastrous New Deal and the Great Society programs were justified on the grounds that they served the “general welfare.” Consider, for instance, the Supreme Court’s ruling in Helvering v. Davis (1937), which upheld the Social Security Act and gave Congress carte blanche to spend and regulate in the name of the “general welfare.” Writing for the Court, Justice Benjamin Cardozo claimed that the Congress had the power to pass laws for the “general welfare” above and beyond any of its enumerated powers as detailed in Article I, section 8. Likewise, in United States v. Carolene Products Co. (1938), the Supreme Court overturned the Constitution’s core principle that the national government’s powers are strictly limited to only those delegated to it. The Court declared the reverse: that the federal government has any powers it wants except those strictly prohibited by the Constitution. And so too with Wickard v. Filburn (1942), in which the Court used the Interstate Commerce Clause to rule that a farmer growing wheat on his property solely for his own use affects interstate commerce and is subject therefore to regulation by the federal government. Justice Robert H. Jackson explained the Court’s ruling by claiming that it “is within the federal power to regulate interstate commerce, if for no better reason than that the commerce clause is what Congress says it is.” Since then, modern liberal-socialists have opened the floodgates for a taxing, redistributing, regulating Deep State that has as its explicate goal to serve the “common good” or the “general welfare.”
One thing is very clear: the Left in this country has always used the “common good” argument to justify taxing the wealth of individual Americans, redistributing that wealth from Peter to pay for Paul, and regulating production and trade. And now, the reactionary Right wants to use to the “common-good” argument to justify using the coercive force of the State to regulate American culture and the moral lives of its citizens as well. Presumably they want some kind of Catholic “higher-good” version of the Great Society.
Personally, I no more prefer conservative to progressive social engineering even if I might find morally repugnant some of the things conservatives want to ban. The only thing I dislike more than prostitution, gambling, pornography, and certain kinds of recreational drugs is the government telling me that I shouldn’t like them. Virtually every rights-violating law passed in the United States was done so in the name of the “common good,” including Left-wing campus restrictions on free thought and free speech. And so, the reactionary Right now finds itself in alliance with the progressive Left. I reject both.