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The Federalist Case Against Faith-Based Initiatives

by Robert A. Levy

This article appeared on cato.org on February 20, 2001.

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With a reformer's zeal, President Bush is plunging into federally funded faith-based charity. He says it will be less costly and more effective than programs run by government bureaucrats. Probably so. But apart from the dispute over separation of church and state, there's a compelling constitutional case against federal welfare programs, no matter who administers them.

The fundamental principle is this: No matter how worthwhile an end may be, if there is no constitutional authority to pursue it, then the federal government must step aside and leave the matter to the states or to private parties. The president and Congress can proceed only from constitutional authority, not from good intentions alone. If Congress thinks it necessary to expand its powers, the Framers crafted an amendment process for that purpose. But too often, rather than follow that process, Congress has disregarded the limits set by the Constitution and gutted our frontline defense against overweening federal government.

Constitutional scholar Roger Pilon has it right when he observes that, "Today the redistributive powers of Congress are everywhere -- except in the Constitution. The result is the feeding frenzy that is modern Washington... as each tries to get his share and more of the common pot the tax system fills... The Framers did not empower government to take from some and give to others. They did not establish a welfare state."

Proponents of federal redistributive programs contend that they are authorized by the General Welfare Clause of Article I, Section 8 ("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"). That interpretation, however, reflects a misunderstanding of Congress' authority, which does not include plenary power to determine and provide for the general welfare. Serious scholars, as well as the Supreme Court, have rejected that unbounded view because it contradicts the premise of limited government. Indeed, it would render the Constitution’s list of conferred powers superfluous.

A somewhat less expansive view, held by Alexander Hamilton, is that the General Welfare Clause grants Congress an independent power to tax and spend – over and above its authority to carry out other enumerated powers, like the power to coin money and establish post offices -- provided only that the spending is for the general welfare. In 1936, that construction was accepted by the Supreme Court in United States v. Butler. The Court distinguished national (i.e., general) from local (i.e., particular) benefits, retaining for itself the prerogative to decide what Congress was about.

Less than a year later, however, the Court abandoned its oversight function in Helvering v. Davis. The Court held that wide latitude in distinguishing general from particular belonged to Congress -- the same Congress that was raiding the Treasury to dole out largess with ever-greater particularity. Not surprisingly, no federal statute has been invalidated because it did not serve the general welfare. So much for enumerated powers -- the centerpiece of the Constitution.

A third interpretation -- in truth, the original understanding -- comes from James Madison and Thomas Jefferson. They argued that the General Welfare Clause confers no additional power. Rather, the clause is a convenient means of referring to the enumerated powers in the aggregate and, more important, restrains their exercise. First, Congress may exercise only enumerated powers; second, that exercise must serve the general welfare, not the welfare of particular parties or sections of the nation. Plainly, Madison and Jefferson were right. The General Welfare Clause was meant to be a shield against the abuse of power, not a sword of power, as it is today. If Congress could first define the general welfare, then distribute money for its furtherance, any limits on federal power where money is involved evaporate. Unhappily, that is what has transpired in the wake of the New Deal Court.

After six decades, the Rehnquist Court has begun to rein in federal regulatory power asserted under the Commerce Clause. But it has not yet challenged the aggrandizement of power under the General Welfare Clause. Yet if federalism means anything, it means allegiance to the doctrine of enumerated powers, which constrains both the regulation of commerce and the redistribution of wealth. Federalism does not consist in determining which level of government delivers services most efficiently. Nor is it devolution of power to the states. First and foremost, federalism is about limited government -- checks and balances based on dual sovereignty.

We need to remind the Bush administration that welfare, like education, is not a federal function -- no matter whether the redistributive acts are affected by public sector bureaucrats or publicly funded faith-based charities. Unconstitutional government acts remain unconstitutional even when performed efficiently through private subcontractors.