The Personal Website of Mark W. Dawson

The General Welfare,
the Enumerated Powers,
and the Necessary and Proper
Clauses of The U.S. Constitution

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General Considerations

The Preamble of the United States Constitution states the ideals of the Constitution, but it is not Constitutionally binding for the governance of We the People. It is, instead, the Articles and Amendments within the Constitution that are binding for the governance of We the People. Therefore, the ‘promote the general welfare’ phrase in the preamble is insufficient and unenforceable as constitutional practice. If it were sufficient and enforceable, Congress and the President could declare anything they wanted to do as for the promotion of the General Welfare for the American people. If this occurred, there would be no limits upon government, and government could interpose on the Liberties and Freedoms of Americans under the guise of the General Welfare.

Liberty and Freedom are not absolutes, as one person’s Liberty and Freedom ends where another’s Liberty and Freedom begin, as I have Chirped on, “03/01/21 Liberty and Freedom”. While some curtailment of Liberty and Freedom is necessary for a just and orderly society, however, any curtailment must be narrow in scope and only to achieve the necessary and proper functions of government. In exercising the necessary and proper functions of government, it must be done so in a manner to assure that the Natural Rights of all are protected.

Divided Government

To protect our Liberties and Freedom from government encroachment, the Constitution divides government into three branches, with the duties and responsibilities of each branch delimited. Each branch is co-equal to the other branch, and the members of each branch are sworn to preserve, protect, and defend the Constitution of the United States. These branches are defined in Article I – The Legislative branch, Article II – The Executive branch, and Article III – The Judicial branch. Under the Constitution, the Legislative Branch is for the creation, modification, and revocation of laws and the oversight of the Executive Branch, while the Executive Branch is for the enforcement of laws and the administration of government, and the Judicial Branch is for the adjudication of the laws passed by the Legislative Branch and enforced by the Executive Branch. All three branches, however, must operate under the constraints of the United States Constitution, and It is within the Constitution Articles that you must look for the General Welfare clause, the Enumerated Powers, and the Necessary and Proper Clause of the Constitution. When you do so, you will discover the constraints on government and the protection of our Liberties and Freedoms from the government.

Enumerated Powers (also called expressed powers, explicit powers, or delegated powers) of the United States Congress are listed in Article I Section 8 and for the Executive powers in Article. II. Section. 2 of the United States Constitution. There are various other enumerated powers of the Constitution sprinkled throughout the Constitution, and more specifically, in the Amendments to the Constitution. The enumerated powers were constituted to ensure the Natural, Constitutional, and Civil Rights of Americans in order to assure the "Freedoms, Liberties, Equalities, and Equal Justice for All" for all Americans. The U.S. Constitution specifies the limited and enumerated powers of the Federal Government, and it does so to assure that the Federal Government will not encroach on the rights of the States and the people as I have written in my article, “The Meaning of the 9th and 10th Amendments”. Another article of mine is on the "Limited and Enumerated Powers" of the Federal government, which examines these limited and enumerated powers and their application in today's society.

Article. I. Congressional Powers

 The Constitution states in Article I that:

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

In Article I Section. 8. of the Constitution, the first paragraph states:

“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 of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

And the last paragraph of Article I Section 8 states:

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

While the intervening paragraphs of Article I Section 8 define the Enumerated Powers of Congress.

While the first paragraph contains the phrase ‘general welfare’, and the last paragraph contains the phrase ‘necessary and proper’, these phrases are contained within section 8 of Article I. Therefore, they are only applicable to the Enumerated Powers of the intervening paragraphs, and do not give Congress carte blanche to do what they think is for the General Welfare or what is necessary and proper for Americans.

The General Welfare and the Necessary and Proper clauses of the Constitution are only found within the Enumerate Powers of Article I, Section 8 (the legislative Powers) of the Constitution. Therefore, they are only applicable to Congress and have no direct effect upon the Executive or Judicial branches of government. However, as the Executive or Judicial branches of government can only act on laws passed by Congress and signed by the President, they have an indirect impact on these branches in that they constrain their actions to fit within the enumerated powers of Congress.

The General Welfare and the Necessary and Proper Clauses of the Constitution have often been misapplied to mean whatever Congress deems is necessary and proper for Americans, without it being limited to the enumerated powers of the Federal government. By misapplying this clause, it becomes possible for the Federal government to take any actions irrespective of the Constitutional limitations on the Federal government. This misapplication has also given rise to bigger government and higher taxes, which are beyond the legitimate scope of government.

Consequently, for any law, rule, or regulation to be Constitutional, Congress and the Executive branch may only exercise the powers that the Constitution grants them, and only within the restrictions of its enumerated powers within the Constitution and the Bill of Rights. As enumerated in the 9th and 10th Amendments of the Constitution, any other powers and rights are retained by the States or the people. Therefore, the Legislative, Executive, and Judicial branches of government only have the limited duties and responsibilities enumerated within the Constitution and its Amendments, and to the “Constitutional Protection of Rights and Just Laws” of the people, and not the ability to do whatever they think is Necessary and Proper for Americans.

Article. II. Executive Powers

As to the Presidential powers, the Constitution states in the first paragraph of Article II Section. 1 that:

“The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: …”

While the last paragraph of this section states:

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: --' I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’”

As to the duties and responsibilities of the President, Article II Section. 2 states that:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The Enumerated Powers of the Executive branch in the Constitution reveals that the President is the administrator and enforcer of the laws passed by the Legislative branch. The President has no power to create laws or ignore the laws passed by Congress. Executive Orders of the President are only to be utilized as a guide within the Executive Branch in the administration and enforcement of the laws as passed by Congress and signed by the President. Discretion in the administration or enforcement of laws needs to be circumspect to the Constitutional Enumerated Powers and the Constitutional Rights of all Americans. And under no circumstances can the President direct that the laws, or a portion of the laws, of the United States, be ignored or unenforced. To do otherwise is for the President to rule by edict, which is totally contrary to the principles of the Constitution.

Article III. Judicial Powers

As to the Judicial powers in the Constitution, they are rather broad and nebulous. The Constitution states in Article III Section. 1 that:

“The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

The reason that this article was brief and amorphous was that it was a very hot (both politically and weather-wise) summer during the Constitutional Convention, and the members were weary and wished to conclude their deliberations. They also believed that the persons who would be appointed to judicial positions would be persons of Integrity and Good Will that would constrain themselves to the boundaries of the Constitution. They also knew it would be difficult to formulate the duties and responsibilities of Judicial appointees as judges often need to be fluid to the circumstances of the particular issue under judicial review. However, they believed that Judicial appointees were bound to the boundaries of the Constitution, and Congress established an “Oaths of Office” for all Judicial appointees to be so bound. A topic that I have examined in my Article, "Judges, Not Lords".

Conclusions

As seen from the above, The General Welfare, the Enumerated Powers, and the Necessary and Proper Clause of The U.S. Constitution is a limitation on the Federal Government and not reasons for the Federal government to become involved in actions outside of their enumerated powers. Therefore, do not be led astray by persons who bandy these terms to justify Federal government actions that are not enumerated in the Constitution. Those persons who utilize these terms without understanding their meaning are corrupting the Constitution, usually for the purposes of achieving their policy goals or political agendas. And people who mislead you, whether intentionally or unintentionally, should be given no heed.

To not be constrained by the Constitution endangers the “Freedoms, Liberties, Equalities, and Equal Justice for All” and our "Natural, Human, and Civil Rights". And this constraint begins in Article VI of the Constitution, in which all federal officials must take an oath to support the Constitution:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Therefore, it is their sworn duty to act within the boundaries of the Constitution and to take no actions outside of the boundaries of the Constitution. An oath that many current politicians and officers of the government seem to have forgotten or disregard to achieve their policy goals or political agendas. As such, they are not worthy of serving the people of America and should be turned out, or removed, from office.  

When intelligently discussing the Constitution, it is important to be knowledgeable about both the document and its history. Otherwise, you face the conundrum of:

"A little learning is a dangerous thing; drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again."
- Alexander Pope - An Essay on Criticism

Much has been written about the Constitution and its history, and most of what has been written has been conflicting. Legal Scholars, historians, and politicians disagree with each other about the history, meaning, and intent of the Constitution. These disagreements are important for a fuller understanding of the Constitution, but these disagreements need to be intellectually grounded to be important. Unfortunately, much that has been written or said about the Constitution is nonsense and unreasonable, and much of this nonsense is spouted for personal or political agenda purposes. The last person you should heed about the Constitution is the politicians, for they are adept in twisting and turning the Constitution to achieve their policy goals and agendas. Even legal scholars and historians have agendas, although they are more adept at disguising their agenda with tortuous and convoluted reasoning, twisted language, and sometimes improper “Reasoning”.

To this end, I have written a separate article, “Constitution Readings”, of the books that I believe provide a good foundation for understating the history and meaning of the Constitution.