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Article I, Section 8, Clause 1 of the United States Constitution, is known as the General Welfare Clause, the Uniformity Clause, the Welfare Clause, and the Taxing and Spending Clause.

Text

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States

Appropriations of revenue for the general welfare

While both of the primary authors writing in the Federalist Papers agreed that the clause delegated to Congress a general power of taxation (i.e., to lay any tax they found appropriate in order to raise revenues), two theories of the spending power were put forth:

• the narrower view of James Madison that spending must be tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military; and
• the broader view of Alexander Hamilton that spending, so long as it is deemed necessary and proper, is an independent enumerated power that Congress may exercise to benefit the general welfare, such as to assist national needs in agriculture or education.

Only three delegates to the Constitution's ratification proceedings were participating in the Federalist Papers, which did not appear widely outside of New York. At the time of ratification, all of the States were governed by the Articles of Confederation, in which the power to provide for the general welfare was established independent of other powers:

"Article III. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

"Article VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury...." (emphasis added)

Until 1936, the United States Supreme Court had imposed a narrow interpretation on the Clause, as demonstarted by the holding in Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), that a tax on child labor was an impermissible attempt to regulate commerce beyond that Court's equally narrow interpretation of the Commerce Clause.

This view was later overturned in United States v. Butler, 297 U.S. 1 (1936). In Butler the Court held that the power to tax and spend is an independent power; that is, that the General Welfare Clause gives Congress power it might not have anywhere else. The tax imposed in that case was nevertheless held unconstitutional as a violation of the Tenth Amendment reservation of power to the states. The Court wrote:

The clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

The modern Supreme Court has interpreted this clause to give Congress a plenary power to impose taxes and to spend money for the general welfare, including the power to force the states to abide by national standards by threatening to withhold federal funds. See South Dakota v. Dole, 483 U.S. 203 (1987).

Today, due to Butler and other subsequent decisions, the Hamiltonian view of the General Welfare Clause predominates in case law. Historically, however, the Anti-Federalists were wary of such an interpretation of this power during the ratification debates in the 1780s. Due to those objections raised by the Anti-Federalists, Madison was prompted to author his contributions to the Federalist Papers, attempting to quell the Anti-Federalists' fears of such an abuse by the proposed national government and to counter their arguments against the Constitution.

Limitations on taxation

Apportionment of Direct Taxes

Other language in the Constitution expressly limits the taxing power. Article I, Section 9 has several clauses so addressed. Clause 4 states:

No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

A tax (if any) subject to the apportionment rule would have to be imposed among the states in proportion to each state's population. This means that the dollar amount of such taxes imposed on the taxpayers within any given state would be required to bear an arithmetical relationship to the total dollar amount of such taxes imposed in the entire nation that would be equal to the ratio of that state's population to the total population of the nation.

Sixteenth Amendment Exemption to Apportionment Requirement

Before 1895, all income taxes were deemed to be indirect taxes, or excises. Direct taxes were understood to be limited to property taxes solely "imposed by reason of ownership," and to capitations (head taxes). However, in 1895 some income taxes (taxes on income from property, such as interest, dividends, and rent) were designated as direct taxes by the U.S. Supreme Court's decision in Pollock v. Farmers' Loan & Trust Co. The prohibition on income taxes of that nature was later eliminated by the ratification of the Sixteenth Amendment in 1913. Shortly after, in 1916, the U.S. Supreme Court ruled in Brushaber v. Union Pacific Railroad that, under the Sixteenth Amendment, income taxes were constitutional even though unapportioned, as the Sixteenth Amendment had provided. In subsequent cases, the courts have interpreted the Sixteenth Amendment and the Brushaber decision as standing for the rule that the amendment allows income taxes on "wages, salaries, commissions, etc. without apportionment."

No Taxes or Duties On Exports

Article I, Section 9, Clause 5 prohibits taxes and duties on exports:

No tax or duty shall be laid on articles exported from any state.

Regarding taxes on exports, the 0.125% harbor maintenance tax on the value of commercial cargo involved in a taxed port use under 26 U.S.C. § 4461 was unanimously ruled unconstitutional in the case of United States v. United States Shoe Corp., 523 U.S. 360, 118 S. Ct. 1290, 98-1 U.S. Tax Cas. (CCH) paragr. 70,091 (1998). The government had argued that the tax was only a "user fee." The Court ruled that it was an unconstitutional tax on exports.

Prohibition On Spending Except By Law

Article I, Section 9, Clause 7 imposes accountability on Congressional spending:

No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.

This clause simply indicates that Congress must have appropriated by law the funds to be spent before said funds can be released from the Treasury.

References

1. Garner, D. and Nyberg, C. (October 5, 2004) "Constitutional Clauses & Their Nicknames" (University of Washington: M.G. Gallagher Law Library)
2. The Federalist Papers No. 41 General View of the Powers Conferred by The Constitution
3. Letter to the House of Representatives, James Madison,Veto of federal public works bill, March 3, 1817
4. Hamilton, A. (5 December 1791) "Report on Manufactures" The Papers of Alexander Hamilton (ed. by H.C. Syrett et al.; New York and London: Columbia University Press, 1961-79) 10:302-4
5. Furtwangler, Albert. The Authority of Publius: A Reading of the Federalist Papers. Ithaca, New York: Cornell University Press, 1984.
6. The Articles of Confederation
7. 259 U.S. 20 (Text of the Bailey v. Drexel Furniture Co. opinion from Findlaw)
8. 297 U.S. 1 (Text of the United States v. Butler opinion from Findlaw)
9. 483 U.S. 203 (Text of the South Dakota v. Dole opinion from Findlaw)
10. Brutus, no. 5 (13 December 1787) "Brutus, no. 5"
11. Brutus, no. 6 (27 December 1787) "Brutus, no. 6"
12. The Federalist Papers No. 41 General View of the Powers Conferred by The Constitution
13. James Madison, Report on Resolutions, in 6 WRITINGS OF JAMES MADISON, quoted in Roger Pilon, Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles, 68 Notre Dame L. Rev. 507, 530
14. Parker v. Commissioner, 724 F.2d 469, 84-1 U.S. Tax Cas. (CCH) paragr. 9209 (5th Cir. 1984) (closing parenthesis in original has been omitted).

• United States Constitution
• Legislative branch of the United States government
• Legal history of the United States
• Taxation in the United States