The Constitution's Poison Pill
The fundamental moral-political principles of the American founding can be identified and summed up by quoting from the two best-known and in many ways greatest sentences ever written in U. S. history. The first is from the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
The next sentence embodying the principles of the American founding is from the Preamble to the Constitution:
We the People of the United States, in Order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
These two elegant, evocative, and rhetorically powerful sentences are almost perfect in the way they capture virtually everything that is good and great about the United States. Tragically, though, embedded in some of the words that give the Declaration and the Constitution such force and meaning are serious errors of commission and omission that are nearly invisible to the naked or non-philosophic eye.
The purpose of this essay is to identify these errors and to begin the process of correcting them, so that we can put the edifice of the American polity on a firmer philosophic foundation.
The Declaration’s Achilles Heel
Among the many complex ideas contained in the Declaration’s famous second sentence, I’d like to identify two that go to the heart of the problem we seek to solve and overcome. First, the Declaration claims that the man’s rights to life, liberty, and the pursuit of happiness are self-evidently true, endowed by God, and unalienable. Second, the Declaration also claims that the sole purpose of government is to protect man’s unalienable rights to life, liberty, and the pursuit of happiness.
The problem with the Declaration’s first major claim (i.e., that its truths are self-evident, that God endowed men with rights, and that these rights are unalienable) is that it is asserted without any philosophic proof or validation. The obvious riposte to this claim can be summed up in two words: Prove it! How is it a self-evident truth that men are endowed by God with unalienable rights?
No defender of the Declaration has ever answered this question. Unsubstantiated assertions do not, however, cut it philosophically. The Declaration’s universal announcement that all men are endowed by their Creator with unalienable rights was an assertion with no grounding in reality. This explains why the English utilitarian philosopher, Jeremy Bentham, could refer to the idea of natural rights as “nonsense upon stilts.” If man’s rights are neither self-evident nor proven to be endowed by God, then they could not be considered as true, and, if they are not true, then they cannot be unalienable. This is the great dilemma and challenge faced by the proponents of man’s individual rights and the philosophy of Americanism.
The sad historical truth of the matter is that these claims about the nature of man’s rights, precisely because they were not validated philosophically, collapsed during the two centuries following 1776. In the face of a withering philosophic assault from Southern slaveholders in the nineteenth century, socialists of various stripes in the twentieth century and postmodern nihilists in the twenty-first century, the Declaration’s truths were and are no longer considered to be self-evident, true, or unalienable in our post-truth society. All the traditional arguments in defense of natural rights have collapsed. (In several essays to follow, I hope to prove philosophically that the Declaration’s self-evident truths are true—demonstrably true.)
The problem with the Declaration’s second major claim (i.e., that the sole purpose of government is to protect man’s unalienable rights to life, liberty, and the pursuit of happiness) is that it contradicted the ruling moral principles held by most Americans during the founding era. The Declaration posited a moral philosophy of individualism, self-interest (rightly understood), and limited government that flew in the face of the dominant moral code of the time (i.e., altruism, either in its Christian or classical republican variants), which says in one form or another that man’s primary moral responsibility is to sacrifice his rights for the sake of others or for the “common good.” Altruism says that you have a moral duty to sacrifice your life, your liberty, and your happiness for the sake of others. It says your highest moral obligation is to serve others in body and spirit. But the Declaration states, by contrast, that you have a right to your life, to your liberty, and to the pursuit of your happiness. The Declaration says nothing about sacrificing your unalienable rights for the sake of others. Indeed, quite the opposite. It states in plain and unambiguous words that the only proper purpose of government is to protect the rights of individuals from physical coercion. That’s it. Nothing else.
But there is an obvious problem here. Circles can’t be squared. Up is not down, in is not out, black is not white. Altruism (as distinguished from kindness or charity) cannot be reconciled with the doctrine of individualism, self-interest, and rights, and it is time for the proponents of Americanism to realize that fact.
The Constitution’s Poison Pill
And what of the Constitution’s Preamble?
At first blush, the Constitution’s famous opening sentence seems to be entirely in harmony with the moral-political principles of the Declaration. Among other things, it announces that the Constitution is creating a national government, the purpose of which is “to form a more perfect Union,” to “establish justice,” to “insure domestic Tranquility,” to “provide for the common defense,” and to “secure the Blessings of Liberty to ourselves and our Posterity.” The Constitution, like the Declaration, seems to promote a theory of laissez-faire government that would leave individuals free to produce and keep the fruit of their labors and to pursue their own individual happiness unobstructed by government interference.
The United States Constitution is by design a constitution of liberty. Guided by the Declaration of Independence, the Constitution indicates that the purpose of government is to protect the fundamental rights of individuals, which means to promote justice and freedom. The doctrine of inalienable rights necessarily imposes limits on the power of government. America’s founding fathers revolutionized the nature of government from one in which rulers ruled to one in which the “rulers” were actually servants, whose day-to-day role was closer to that of a referee than a “ruler.”
The Constitution’s government comes the closest of any in history to establishing the “Night Watchman” ideal of government. In the 45th essay of The Federalist, James Madison declared “The powers delegated by the proposed Constitution to the federal government, are few and defined.” Likewise, Alexander Hamilton, whom we shall see momentarily was not exactly a friend to laissez-faire government, identified the Constitution’s objects in the 23rd Federalist essay as remarkably few in number. Hamilton limited the powers of the federal government to just four: (1) “The common defense of the members”; (2) “the preservation of the public peace as well against internal convulsions as external attacks”; (3) “the regulation of commerce with other nations and between the States”; (4) “the superintendence of our national intercourse, political and commercial, with foreign countries.” The specific powers granted to the federal government to achieve these general objects are detailed in Article I, section 8 of the Constitution, and they were remarkably restricted in nature. There can be no doubt that the Constitution’s framers created a limited sphere of government power and granted a wide birth of freedom for individuals to live beyond the reach of politics but under the rule of law. The world had never seen a government like this before.
Tragically, though, there was a poison pill built into the Constitution that would eventually destroy its original spirit and design. The Constitution’s opening sentence also states that one of the purposes of the new federal government was to “promote the general Welfare,” also sometimes referred to as the “common good” or the “public interest.” The phrase was also repeated in the preface to Article I, section 8. The problem, of course, is that a government dedicated to simply establishing “justice,” insuring “domestic Tranquility,” providing for the “common defense,” and securing the “Blessings of Liberty” will inevitably come into conflict with one committed to promoting the “general Welfare.”
The idea of the “common good” and its multivariant uses (e.g., the “public good,” the “public welfare,” and the “general welfare) has a long-standing tradition in Western philosophy and politics. From classical Greek and Roman political philosophers to America’s founding fathers, the concept has been a staple of political discourse. Most of America’s revolutionary state constitutions, for instance, included some variation of the concept. The New Hampshire, Virginia, and New York constitutions spoke of the “public good,” the Pennsylvania, North Carolina, Vermont, and Massachusetts constitutions referenced the “common good,” and the New Jersey and Maryland constitutions were dedicated to pursuing the “public welfare.”
How did America’s founding generation understand these synonymous concepts? What did the framers of the Constitution mean by the “general welfare,” and why were the Constitution’s opponents alarmed by its inclusion?
How the Founders’ Understood the Idea of the “General Welfare”
Generally speaking, American constitution-makers used the related concepts of the “common good,” the “public good,” or the “general welfare” in a strictly limited sense. The “general welfare” was synonymous with freedom, security, peace, justice, and the rule of law. 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 fro the common Defense and general Welfare of the United States.” The Father of the Constitution rejected 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 have seen already, the Virginian understood the Constitution’s grant of powers to the federal Congress to be “few and limited.” Madison 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 of the “general welfare” clause that would cause “a metamorphosis of the Constitution into a character, which there is a host of proofs was not contemplated by its Creators.”
Despite Madison’s miserly interpretation of the “general welfare” clause, the Constitution’s opponents, the Anti-Federalists, were unimpressed. During the debates over the Constitution’s ratification, the Anti-Federalists argued powerfully and convincingly against the “general welfare” clause contained in 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, if not tyranny. 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.
From the vantage of history, we can now see that Brutus’s concerns were prescient. Shortly after the Constitution's government was launched in 1789, the proponents of an expansive interpretation of the “general Welfare” clause revealed their true intentions. The case of Alexander Hamilton is instructive.
In 1791, as George Washington’s first Secretary of the Treasury, Hamilton issued his “Report on Manufactures” in which he ripped the mask off the meaning of the “general Welfare” clause. Hamilton’s report justified using government power to promote the development of domestic manufacturing on the grounds that such a policy was well within the powers given to the federal government via the “general Welfare” clause.
Citing Article I, section 8 (i.e., “That Congress shall have the 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”) in order to justify his plans for corporate welfare, Hamilton claimed that Congress’s powers are virtually unlimited and comprehensive. According to Hamilton, the concept “general welfare” was not limited in any way by the explicit surrounding powers listed in Article I, section 8 that either preceded or followed it. In other words, the general welfare clause was not limited by the words of the Constitution. In Hamilton’s words:
The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.
It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as regards an application of Money.
Hamilton’s open-ended interpretation of the “general welfare” clause won the day and the Constitution’s poison pill was released. Tragically, this was the beginning of the end. Over the course of the next two centuries, the “general welfare” clause was used to justify eroding the Constitution’s animating moral spirit and its explicit limits on power.
The immoral and 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 administrative State that has as its explicate goal to serve the “common good” or the “general welfare.”
The Philosophic Flaws of the “general Welfare” Clause
So, what is wrong with the idea of the “general welfare”? How and why is it a poison pill that served to undermine the founders’ vision of a limited, constitutional government?
The problem with including the idea of an undefined “general welfare” in the Constitution is that the concept is an open-ended, non-objective, floating abstraction entirely disconnected from reality. The “general welfare” clause provides an all-purpose, fill-in-the-blank opportunity for those who seek or hold power to violate the liberties and unalienable rights of American citizens. To make matters worse, the Constitution gave Congress in Article I, section 8 an unlimited power to “make all laws which shall be necessary and proper for carrying into execution” the general welfare. In other words, the Constitution potentially gives the federal government unlimited means to achieve unlimited ends. Thus, built into the Constitution is a tension, if not an outright conflict, between two necessarily competing ideas: the presumption of liberty versus the presumption of the general welfare, which also means the rule of law versus the rule of men.
We know that most (but not all) of America’s founding fathers equated the “general welfare” and the “common good” with protecting the right of individuals to be free from the coercion and compulsion of other men. This means that a large majority of America’s founding fathers favored the presumption of liberty in theory, but the problem is that that principle was never defined and made clear in practice. The great failing of the Constitution’s framers was that they did not establish freedom, justice, security, and peace as the sole ends of government and as synonymous with the “common good.” Instead, they left the “general welfare” as an undefined and competing principle.
The Constitution therefore leaves several fundamental questions unanswered. First, is the ultimate purpose of government to secure justice, peace, and the “Blessings of Liberty” or is to promote the “general Welfare”? Second, what is the “general welfare,” where does it come from, who determines what it is, and how is it known to those who claim to speak on behalf of the entire society? Third, does the common good or the “general welfare” have universal and timeless meaning, or does it change with time and place? Finally, in any conflict between the presumption of liberty and the presumption of the general welfare, which principle has priority?
Contrary to what contemporary socialists and conservatives claim, the truth of the matter is that there is no objective definition of what the “common good” is. It does not have one universal and permanent meaning. In other words, there’s no there, there! There is no common definition of what the “common good” is, which is dispositive evidence that it either does not exist or at the very least it is disagreed upon by not only the major ideological, political, or religious factions in American society but in the end by virtually everyone. This means that the “public good” can only be determined and enforced by the men and women who rule, that is, by those who hold the reins of political power at any given moment in time. And a government that has the subjective power to define and expand the “general welfare” as the end of government also has the power to limit liberty.
The obvious problem, of course, is that a government strictly limited to the protection of individual rights cannot be reconciled with a government of potentially unlimited ends (i.e., the “general welfare” clause) and unlimited means (i.e., the “necessary and proper” clause). It turns out that what is supposed to be the supreme moral-political principle of individual freedom can be overturned by what is clearly a competing moral-political value, namely, the “general welfare.” Even worse is the possibility—maybe even the likelihood—that over time freedom will be transformed from being an end to becoming a utilitarian means to achieving the common good, which means the constitution of liberty must serve the “general welfare” regime.
The presumption of the “general welfare” clause and its supporting power is that there are and must be exceptions to the rule of liberty and even to the rule of law. The proponents of liberty do recognize that there may in fact be relatively rare exceptions in theory to the absolute rule of liberty and rights and even fewer in practice (e.g., during existential emergencies when a predatory foreign nation invades a free society), but those exceptions can and must be identified, defined, and distinguished from those situations in which such exceptions are arbitrarily determined and cannot be justified by the principles of freedom and rights. The exception should never become the rule.
The challenge for constitution-makers and legislators is to define objective criteria to guide government officials in those unusual and infrequent circumstances when it might be necessary to override individual rights temporarily in the name of the “common good.” (One can think of circumstances during war, for instance, when it might be necessary to move troops across privately held property without the permission of the owner.) The task of establishing such criteria is, however, extremely difficult. Emergency situations should therefore be treated as rare and exceptional and never as the rule. In other words, if the notion of the “common good” has any salutary import in a free society there must be objectively defined standards by which to judge when the presumption of liberty can be suspended temporarily and when it cannot. There must also be what we might call a “snap-back” mechanism that restores the people’s rights and liberties after the emergency has ended.
But there is even a better way to think about the “common good” and its role in the constitution of a free society. The constitution of liberty must always hold the freedom of the individual as its end or polestar. To the extent that the “common good” or “general welfare” is even a legitimate concept, it should be viewed not as the purpose or end of government but as a secondary consequence or as a positive externality of government’s highest moral purpose. The moral principle of individual rights is not justified, however, because it serves the common good, but, rather, because it is grounded in human nature and serves the lives of individual men and women. This is why the constitution of a free society must impose moral limits on government power and action before it takes into consideration any calculation about the “general welfare.”
Any conception of the “common good” that requires the violation of the individual rights of some is neither “common” nor “good.” Happiness, for instance, is the highest “good,” but a “common good” that denies some their pursuit or achievement of happiness cannot be said to be a part of the “common good.” In a free society, the powers and activities of government should be restricted to the enforcement of rights, the net result of which will be to promote the general wellbeing of society as a whole. In other words, as John Locke put it in his “Essays on the Law of Nature,” “the rightness of an action does not depend on its utility; on the contrary, its utility is a result of rightness,” or, as Benjamin Constant wrote in his Principles of Politics Applicable to All Government, “Right is a principle; utility is only a result. Right is a cause; utility is only an effect.” A free, just, and good society will always regard the presumption of liberty to be morally superior to the presumption of the “common good.”
The False God of the Common Good
I can think of fewer philosophical-political ideas in the entire Western tradition that have been as damaging to the free and virtuous society as the idea of the “common good.” The “moral” foundation of “common-good” politics is grounded in the collectivist and statist virtues (e.g., selflessness, duty, self-sacrifice, and submission) that are anathema to America’s classical-liberal tradition. The politics of the “common good” requires citizens to selflessly sacrifice their “pursuit of happiness” to obey the diktats of the ruling class. But coerced virtue is not virtue; it’s obedience and obedience is the primary virtue of regimes like that found in North Korea. True morality is not, however, about obedience, submission, and subordination. That is the morality of serfs, not of free men and women.
The proponents of the common-good philosophy fail to understand that, for an idea or action to be moral, requires uncoerced, free choice. True moral virtue begins with a free, rational judgment of what is right and wrong and then acting on that judgment. It is about choosing to do the right thing and then doing it. Common-good morality is for the weak and lazy; it is for those who want to be told by Harvard social planners how, when, and where to be good and just. The moral hazard created by “common-good” legislation is that it disincentivizes people from being productive and good. It robs them of moral, political, and economic self-reliance and forces them to submit and obey. Common-good politics also incentivizes and elevates power lusters, who want everyone to live by their standards and rules.
To the extent that the idea of a “common good” has any valid philosophic meaning, it can only be the sum of the interests or goods of all men and women in a particular society, and the primary “goods” common to all men are freedom, justice, safety, and the rule of law that protects them. Freedom, justice, safety, and the rule of law are the moral-political preconditions necessary for individuals to pursue all the material and spiritual goods required for living and living well. Moral virtue is no doubt an important and necessary “good” for all men and women, but it cannot and should not be created by government and then forced on the citizens of a free society. To repeat: freedom not force is the sine qua non for moral virtue. Finally, it is important to note that moral virtue is also a necessary precondition for a free society. Freedom and moral virtue work together in a symbiotic relationship.
Morally and politically, America was a house divided from the very beginning, and the fundamental contradiction sown into the original American system could not endure permanently. The brilliant but flawed political structure built by the founders rested on moral quicksand. It is not possible to build a lasting political system on the premise that individuals have a right to freely pursue their happiness while insisting that morality is defined by sacrificing one’s self-interest to the “needs” of others. Nor could the founders’ doctrine of individual rights be squared with a government that gave the ruling class near unlimited power to pursue the “common good” or the “general welfare.” Attempting to combine the ethical individualism and limited government built into the Declaration with the altruism of the general culture and the collectivism inherent in the Constitution’s “general welfare” clause was doomed to fail. In the end, it turned out that man’s rights to life, liberty, property, and the pursuit of happiness were entirely alienable.
As Abraham Lincoln once remarked, a nation composed of two competing philosophies must eventually become “all one thing or all the other,” which is precisely what has happened in this country over the course of the last 200 years. The moral-political implosion of a nation is a process that can take decades or even centuries, but it now seems clear that the morality of rational self-interest implicit in the Declaration has lost to the morality of self-sacrifice and the laissez-faire government of the original Constitution has given way to the statism of left- and right-wing common-good politics. In other words, the moral guilt built into altruism combined with the “will-to-power” politics of the common good has thoroughly perverted America’s constitutional republic.
The overriding question that now animates the defenders of classical liberalism is: is it still possible to recover the founders’ republic? As we stand now in the early decades of the twenty-first century, how are we to keep what the founders got right and discard what they got wrong? How shall the Declaration’s principles be improved upon, completed, and defended as true, right, and good?
To properly defend the moral and political principles of the American founding, we must begin by 1) validating the Declaration’s self-evident truths as true—absolutely true; 2) grounding the principle of individual rights on its only proper moral foundation, i.e., the doctrine of self-interest (rightly understood); 3) exploding the doctrines of altruism and the “common good” as immoral; and 4) reestablishing the protection of individual rights as the sole purpose of government.
In the essays that follow, my task is to go where John Locke and his American students failed to go. My goal is to improve and thereby complete the principles and institutions of the American founding. I will do this by grounding the principle of individual rights in the moral laws of man’s nature and by validating that principle as true—absolutely, permanently, and universally true.
Nothing else will do.
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