Wednesday, August 29, 2012

Parsing the General Welfare Clause

With all the Repugs in high dudgeon railing against Obama and his "socialism" (sic) it is well to re-examine the general welfare clause of the Constitution which they'd prefer to ignore. The Preamble of The Constitution commences:

“We the PEOPLE of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….”

This passage has been a source of never-ending squabbling over every issue from states’ rights, to the degree of control vis-à-vis the individual vs. the collective or common good.

Much of this, I believe, is unnecessary and merely discloses an inability of current citizens to think or even conceive of the community or the commons. So brainwashed have we become by the screeds of either ‘rugged individualism’ or Social Darwinism.

In this timely blog (coinciding with the Reepos' convention platform which intends to repeal individual rights)  I’d like to show that understanding the clause “promote the general welfare” need not be as difficult or as intractable as some Rightists and Libertarians have made it to be. Once one removes the dross and clutter of misconstrued language its meaning is almost self-evident.

Let’s begin by quickly dispatching some of the more common canards, often circulated by the Right's darlings, like the Tea Baggers. One is that the clause refers only to military defense, or that "no positive social rights inhere in the Constitution". (All rights are ipso facto, "negative",  expressing what gov't may not do).This conveniently excludes any basis for social spending, but is erroneous on inspection. (Albeit convenient for rightists who feel free to run up any deficits they want when they're in power, so long as the tab is for military wars of choice, toys, and tax cuts.)

The reason is that the phrase – “provide for the common defense” is separate from that to “promote the general welfare.” Hence, the two have no commonality in terms of language, unless one supposes the writer was deliberately redundant.

Another common error is to invoke the ‘fallacy of division’ in this case, disputing that “promotion of the general welfare” refers to anything other than the United States as the entity whose ‘welfare’ is being considered. This again is falsified on inspection. Note that the Preamble begins:

We the PEOPLE…”

Not “The United States”. In fact, the United States is itself an artifact of the people’s will and their creation, as elucidated say in 'The Federalist Papers', by James Madison, i.e. comparing the federal system to the solar system.. The Constitution, composed by the “people”, engendered the United States as a new national entity. In the context, therefore, the United States as this manufactured entity and abstraction cannot of itself have a “general welfare”. Only PEOPLE (citizens) can possess or aspire to a general welfare. Not people as disparate individuals, but as a collective or commonality aspiring (in common cause) toward a good.

Prof. Garry Wills (‘A Necessary Evil: A History Of American Distrust of Government’, Simon & Schuster, 1999) further reinforces this point in his chapter ‘Constitutional Myths’(p. 108). He notes that citizens alone possess rights, which neither the states nor the federal government share. Both the latter retain powers and prerogatives, but not rights.

The Ninth Amendment states that “the people retain unenumerated rights.” "The people:"  here refers to flesh and blood citizens, not to a bunch of contractual abstractions (states), or to corporations, as Mitt Romney seems to believe.. As Wills emphasizes and underscores (ibid.):

“The states have no natural rights. Their powers are artificial, not natural – they are things made by contract.”

By extension, the “United States’ may be regarded as the set of all such states (in "the Union", as defined by The Constitution) for which rights are forged by contract. To that extent, its power – as an ensemble of separate states unified in political comity – is also artificial not natural. In this context, as an artificial contractual entity, it cannot possess a “general welfare”.

But neither can separate individuals possess a “general welfare”! Since, to say so is to mix the particular with the general. Clearly then, general welfare and its promotion must refer to something essential to the general collective and its good, which also would contribute to the goals set out in The Constitution.

What are these goals, that we might give at least one example of the general welfare?

One is “the pursuit of life, liberty and happiness”.

What  manner of “general welfare” might be associated with this?

Without a doubt, one form is “health care”. Why? Because the accessibility to health care (of a form that doesn’t bankrupt) implies a prerequisite for the opportunity to pursue “life, liberty and happiness.” Without the potential to access such affordable care, a person – say with a severe back injury or chronic disease – cannot pursue the goal. And assuming s/he can, it will not be a pursuit with achievement at the end, in all probability.

Thus the general welfare is enhanced (“promoted”) by the general health of the PEOPLE who comprise it. By contrast, the general welfare is subverted (“demoted” or undermined) if most of the PEOPLE are permitted to suffer their respective health crises, injuries and diseases without attention.

Can the general welfare clause be invoked to justify an executive mandate for creation of a host of agencies, or large government bureaucracy, committed to something such as “universal health care” say? No it cannot. The clause doesn’t stipulate this at all, only that it is expected there will be attention by government to promotion of the general welfare.

What this means is that the particular means to satisfy the clause’s implementation is left to government. If legislation is approved, it’s permissible. In this case, the Patient Protection and Affordable Care Act is indeed permissible, and the Republican intent to overturn is a red flag warning of their hostility to the general welfare clause, and hence, the Constitution.

They can bark and howl all they want that “rights come from God”, but if they overturn this critical act, they’ll surely show that derelict and ideologically-driven humans have a greater hold on limiting unenumerated, fundamental rights than any deity.

Most controversial, and with which many will disagree, is the citizens' right to privacy. Again, while not explicitly stated in the Constitution as an enumerated right, it can be regarded as an unenumerated right under the Ninth Amendment. Privacy in this case, means the citizen ought to be protected in his own domecile from unwanted snooping, intervention into his affairs and monitoring ---- say by drones using a type of stealth radar technology outside his window. It also means, government ought to have as a priority protecting his name and identity - as opposed to having loose laws that enable them to be commercialized and sold to any snoop that's interested.

The reason no "God" can be the source of human rights, especially the unenumerated, is that only we humans are capable of conceiving them. This also assures us that only humans are capable of taking them away - as the Repugs seem bent on doing with Obama's health care plan.

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