A comment was made on my blog yesterday which brought up the fact that, though the preamble to the Constitution has no basis in law, it is used while interpreting the role of the federal government. One phrase in particular is used as an excuse for everything the federal government does to expand it's own power.
The preamble reads, "We the people, in order to form a more perfect union, establish justice and ensure domestic tranquility, provide for the common defense, promote the general welfare, and ensure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America."
That general welfare clause has been used as a justification for many new programs and wasteful spending over the years. Isn't our current push for government run health care touted as "promoting the general welfare"? But what about another clause? What about that little thing about "ensure the blessings of liberty"? Have we decided that some of these clauses are more important than others? If so, how did the general welfare become the top dog in the prioritization process? So important that we can push liberty and justice aside for it? Considering that our pledge of allegiance says with liberty and justice for all, not for the general welfare of all, shouldn't liberty and justice be a little higher up on the totem pole?
Their legal interpretation of the preamble was this; "Although the preamble is not a source of power for any department of the Federal Government, the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution. ''Its true office,'' wrote Joseph Story in his COMMENTARIES, ''is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, 'to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?''
The annotation uses the common defense as an example, but what about using the general welfare as an example. Doesn't the above interpretation mean that the federal government CANNOT use that phrase in order to expand it's own power, or to create power for itself. Yet isn't that exactly what it has been doing for years? The quote above says "no one can doubt that this does not enlarge the powers of Congress.." But that doesn't appear to be true since many people, many, many people, believe that it DOES enlarge the powers of Congress. And Congress is way more interested in their power than our liberty. So now we are pushing liberty aside, and in some cases justice, in order to promote an incorrect interpretation of the general welfare. And we're using that incorrect interpretation to create power where it was not given, nor intended, in the Constitution.
The annotation also says that it should be used to see if some legislation is working against that statement more than if it's working towards it. Couldn't the argument be made that cap and trade is against the general welfare? Explain to me, if you can, how increasing everybody's energy costs, putting thousands out of work, and giving the government control over free enterprise is a promotion of the general welfare. Because, frankly, I don't get it.
The fact is that the pre-amble to the Constitution should not be used as a justification for any law or any new program. Those items listed there are already covered in the body of the Constitution in the powers delegated for each branch. And if the power is not designated, then it is not a power that exists. No matter what the preamble says.
