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The General Welfare clause is a favorite of the more liberal population because it seems to give carte blanch authority to do whatever Congress wants to “promote the general welfare.” Of course, this cannot be the case, or else why include the Bill of Rights or any of the other provisions of the Constitution.
In fact, during the founding of this country, many of the anti-federalists spent much time complaining about this exact clause for these very reasons. They essentially argued that the General Welfare Clause gave the Congress the power to exercise every power that they could claim was necessary for the “common defense or general welfare”.
However, James Madison persuasively writes that this is not the case. He states:
“If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” He later added, “With respect to the two 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.”
Thomas Jefferson also states: “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”
So, it seems clear from our founders most intelligent writers that the General Welfare Clause was never meant to enumerate powers given to the Congress, just lay out general powers.
In fact, Congress is specifically limited to their enumerated powers and this makes sense.
If we were to simply accept that Congress had any power that was necessary for the ambiguous “General Welfare” why have a Constitution in the first place? Just give Congress all power to do anything they want. The Founders, in their wisdom, knew this was not acceptable.
Expressing my freedom of speech is only allowed when it doesn't disagree with your point of view.
Typical of a Liberal.
Quote:
Feel free to be quite SURE that brown is blue, too. Won't make it any more true.
And you likewise can feel free to delude yourself into thinking that the Constitution doesn't outline the LIMITS of government and is not, nor was it ever meant to, GRANT POWERS of government.
Yeah, our radically leftist President and his followers are trying to push the activist line, but the Judge based his result quoting the Federalist Papers and the Constitution. (Meaning the Judge is the reverse of an activist).
An activist would believe you can interpret anything you want from the Constitution rather than going by what it says.
There was also no severalbility in the bill, so it has to be void in whole if voided in part.
Yeah, our radically leftist President and his followers are trying to push the activist line, but the Judge based his result quoting the Federalist Papers and the Constitution. (Meaning the Judge is the reverse of an activist).
An activist would believe you can interpret anything you want from the Constitution rather than going by what it says.
There was also no severalbility in the bill, so it has to be void in whole if voided in part.
Excellent points, RCCCB, and spot on for both insight and accuracy.
Severability is a doctrine of judicial restraint, and the Supreme Court has applied and reaffirmed that doctrine just this past year: “‘Generally speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’” [...]
The question of severability ultimately turns on the nature of the statute at issue. For example, if Congress intended a given statute to be viewed as a bundle of separate legislative enactment or a series of short laws, which for purposes of convenience and efficiency were arranged together in a single legislative scheme, it is presumed that any provision declared unconstitutional can be struck and severed without affecting the remainder of the statute.
And from the brief prepared by the Family Research Council for this trial:
Severability is fundamentally a doctrine of judicial restraint. “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.” [...]
The question of severability is a judicial inquiry of two alternatives regarding the nature of a statute. One possibility is that Congress intended a given statute as a bundle of separate legislative embodiments, which for the sake of convenience, avoiding redundancy, and contextual application, are bundled together in a single legislative enactment. This makes a statute a series of short laws, every one of which is designed to stand alone, if needs be. The second possibility is that a given statute embodies a carefully-balanced legislative deal, in which Congress weighs competing policy priorities, and through negotiations and deliberation crafts a package codifying this delicate balance.
What makes this interesting is not only that the good judge would elect to use much of the exact wording contained in a brief prepared by a hate group, but that he would also take this stand on severability. The earlier ruling by Judge Hudson in Virginia also found that the health care act is unconstitutional, but on the issue of severability, he said (p. 39-40):
It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501…
Therefore, this Court will hew closely to the time-honored rule to sever with circumspection, severing any "problematic portions while leaving the remainder intact."
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