Robert E. Wright
In my 2021 Constitution Day post “And Secure the Blessings of Liberty,” a paean to the Preamble of the US Constitution, I asserted that the Framers used the phrase “the general welfare” in the Preamble (and in Article 1, Section 8, clause 1) to mean something akin to Kaldor-Hicks efficiency. In other words, they meant that the key goal of the Constitution was to implement policies that would benefit Americans on average without reducing the blessings of liberty.
Some readers questioned the Kaldor-Hicks claim. What follows constitutes my answer.
Ideally, the Framers would have made clear that by general welfare they meant Pareto-improving policies. In other words, they would have clearly stated that they wanted policies that improve the situation of one or more people without making anyone else worse off. Mutually beneficial trades are common Pareto-improving transactions that occur naturally whenever free economic entities interact. Pareto-improving public policies, by contrast, have to be well-thought out and potentially compensate those negatively affected by changed conditions.
Unfortunately, the Framers did not make clear what they meant by the general welfare. Instead, they tended to use the phrase in potentially ambiguous ways. In 1735, for example, Benjamin Franklin asserted that “natural religion, or … the laws of our nature … oblige us … to do good Offices to, and promote the General Welfare and Happiness of our Fellow-creatures.” One can read a Pareto condition into that quotation by noting that a service (“office”) cannot be good and happiness-inducing if it injures others (“our Fellow-creatures”), but it is hardly a crisp formulation.
In 1754, in “Reasons and Motives for the Albany Plan of Union,” Franklin used the term general welfare to mean the common or joint welfare of all the colonies, as opposed to the welfare of specific colonies. Again, one could interpret this as implying a Pareto condition, but it is far from explicit. The same could be said of Franklin’s unpublished 1769 attack on the notion that “the British legislature, … are the only proper judges of what concerns the general welfare of the whole empire.” He retorted that Parliament was the best judge of the general welfare of Britain, “But the Irish Legislature are the proper Judges of what concerns the Irish State, and the American Legislatures of what concerns the American States.”
When writing to Scottish Enlightenment philosopher David Hume in 1760, Franklin also used general welfare to refer to the joint interests of the colonies, England, and the British Empire. He also praised Hume’s “Jealousy of Commerce” (apparently Hume’s 1758 “Of the Jealousy of Trade,” which is Essay VI here) and thought it would promote “the Interest of Humanity, or common Good of Mankind.” Again, this could be read as implying a Pareto result because a policy that helped some while hurting others can hardly be considered of “common Good,” but Franklin may have had an average or Kaldor-Hicks outcome in mind.
In fact, the term “general welfare” commonly appeared in the Framer’s thought in conjunction with Pareto concepts like peace, prosperity, and human rights.
In 1769, in a letter to William Strahan (soon to be publisher of Adam Smith’s Wealth of Nations), Franklin argued that returning to status quo ante Stamp Act was necessary to mend the widening breach between the colonies and Great Britain because British policies had “greatly endanger’d the National Peace and general Welfare.”
In 1773, Franklin again equated the general welfare with peace and harmony, asking Thomas Cushing (1725-1788) of Massachusetts if the colonies and Mother Country “shall go on injuring and provoking each other, instead of cultivating that Good Will and Harmony so necessary to the general Welfare?” Similarly, a 1774 attack against Franklin’s authority to represent Massachusetts in the Privy Council argued that “a real Colony Agent, … will think it his duty … to contribute all he can to the peace, harmony, and orderly government of the whole; as well as to the general welfare and prosperity of the province.”
In 1774, John Jay, later one of the three authors of The Federalist, claimed that America “has not only been oppressed, but abused and misrepresented; and the duty we owe to ourselves and posterity, to your interest, and the general welfare of the British empire, leads us to address you on this very important subject.” He then laid out the necessity of a colonial bill of rights that would include protection of religious freedom, property rights, trial by jury, and other Pareto policies.
In 1775, Franklin told Pennsylvania legislator Charles Thomson that he believed that Lord Chatham wanted “sincerely to make us contented and happy, as far as consistent with the general Welfare.” Acknowledging that colonial happiness might at some point become inconsistent with the general welfare by impinging on the interests of others implies a Pareto conception of the phrase as well, but does not seal the matter conclusively.
In Jefferson’s Annotated Copy of Franklin’s Proposed Articles of Confederation, also from 1775, the phrase “general welfare” occurs 3 times:
“said united colonies hereby severally enter into a firm league of friendship with each other binding on themselves and their posterity for their common defence against their enemies for the security of their liberties and properties, the safety of their persons and families and their mutual and general welfare.”
“the power and duty of the Congress shall extend to the determining on war and peace, the entring into alliances, the reconciliation with Great-Britain; the settling all disputes and differences between colony and colony if such should arise; and the planting of new colonies when proper. The Congress shall also make such general ordinances as, tho’ necessary to the general welfare, particular assemblies cannot be competent to viz. those that may relate to our general commerce, or general currency, to the establishment of posts, the regulation of our common forces.”
Jefferson at 1 above, noted: “(a) qu. what ‘their mutual and general welfare’ means. There should be no vague terms in an instrument of this kind. It’s objects should be precisely and determinately fixed.”
Unfortunately, Franklin did not heed Jefferson’s warning. Franklin’s use of general welfare in quotation 2, though, suggests that by “general” Franklin again, as in the Albany Plan, simply meant something akin to national: commerce, money, post office, and military were all national concerns and eventually addressed as such in the US Constitution.
In quotation 1, the addition of “mutual” to “general welfare” smacks of mutually beneficial trade and hence implies a Pareto condition. But, again, a looser Kaldor-Hicks formulation cannot be ruled out. Consider, for example, the November 1785 diary entry of future president John Quincy Adams (1767-1848). He wrote “that any human creature, who seeks the general welfare of the society he belongs to, does all the good, and as little harm, as is possible.” That is not quite Pareto, but invokes even more than an average Kaldor-Hicks goal.
So let’s not lose sight of the forest for the trees. Whether the Framers believed that federal policies should help one or more without hurting anyone (Pareto), or whether they believed that federal policies should help Americans on average, or the average American, or the median voter (different formulations of Kaldor-Hicks), or if they merely meant the entire nation’s welfare, as distinct from the welfare of individual states, they clearly did not countenance policies that may or may not, or that merely appear to, promote the general welfare. As James Madison himself wrote, he would rather have thrown the Constitution into the fire than give too wide a meaning to the general welfare clause.
In short, I reject the notion that most of the Framers would have supported the constitutionality of any policy that Congress enacted simply because it falls within the federal government’s purview. To be constitutional, a federal law or other policy must be in scope but also at least a Kaldor-Hicks improvement. Yet many policies inconsistent with the general welfare, construed in any of the ways described herein, are currently in effect.
Such policies are unconstitutional and should be rescinded. But they will not be, for two reasons. First, the debate surrounding the general welfare clause, such as it is, has revolved around the scope of the federal government’s enumerated powers rather than around policy effects and efficacy. “The welfare of the community,” Hamilton wrote in defense of a national bank in early 1791, “is the only legitimate end for which money can be raised on the community.” Clearly, that invokes at least a Kaldor-Hicks condition.
Unfortunately, Hamilton then further explained that his proposed bank was a national/general concern and thus constitutional because the question of whether the bank was “beneficial” or not was “worthy of consideration,” but not a “constitutional point.” And there, I believe, he erred. But his mistake does not excuse the error of the thousands of statist policymakers who blindly followed him down the wrong path thereafter. In his defense, Hamilton also argued that policies that are “immoral” or “contrary to the essential ends of political society” were unconstitutional. (For more on these tricky issues, see Chapter 12 of Richard Sylla and David Cowen, eds. Alexander Hamilton on Finance, Credit, and Debt.)
The second reason unconstitutional policies will continue is that federal policymakers have rigged matters in such a way that they cannot be held personally accountable for breaking their oath to the Constitution. The worst case scenario is that the SCOTUS ends their unconstitutional policies months or years after they take effect and/or they are not reelected. At least two federal statutes might provide relief if an attorney general had the nerve to prosecute anyone under them — “Deprivation of Rights Under Color of Law” and “Conspiracy Against Rights” — but of course members of America’s Ruling Class hold themselves above such laws, just as they feel free to abuse their own Covid mandates, to defy federal immigration law, and so forth.