New Deal and the Great Society: Warnings From America’s Founders on Constitutional Misconstruction
We are going to assemble the best thought and broadest knowledge from all over the world to find these answers. I intend to establish working groups to prepare a series of conferences and meetings — on the cities, on natural beauty, on the quality of education, and on other emerging challenges. From these studies, we will begin to set our course toward the Great Society. – President Lyndon Baines Johnson, Ann Arbor, MI, May 22, 1964
In America in 1964, the seeds of the later discontent of the 1960s were being planted. The nation had just suffered an horrific assassination of an enormously charismatic president, John F. Kennedy, we were in the midst of an intense national conversation on race and civil rights, and we were just starting to get mired in a military conflict in Southeast Asia.
We were also getting into a presidential election, and while tackling poverty in America wasn’t a centerpiece, President Johnson started giving a series of speeches talking about transforming the United States into a “Great Society”—a concept that was going to be the most-massive series of social welfare reforms since Franklin Roosevelt’s post-depression “New Deal” of the 1930s.
In that time, there was serious debate over whether the federal government even had the power to engage in what had, traditionally, been state-level social support work—or, previously, private charitable work. The debate centered around the Constitution’s “general welfare” clause, the actionable part of the United States Constitution building on the Preamble’s “promote the general welfare” language, saying in Article I, Section 8, Clause 1 that, “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;” (emphasis added)
Proponents of an increased federal role in social service spending have argued that “welfare” for this purpose means just what politicians today proffer that it does: that “welfare” means social service spending, and that because the Constitution grants Congress this power, such power is expansive (if not unlimited).
But this flies in the face of the whole concept of the Constitution itself—which is the idea of a federal government of limited, carefully-enumerated powers. The Founders were skeptical of powerful, centralized government (and had fought a revolution over that very point), and the debate of just how powerful, how centralized was at the core of the Constitutional Convention’s debates.
Constitutional author (and later president) James Madison said this in Federalist 41:
It has been urged and echoed, that the 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,’’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.
In 1831, he also said, more plainly:
With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.
This was, essentially, the interpretation of the clause that stood for nearly 150 years—only to be largely gutted in the wake of FDR’s New Deal programs. As discussed in the essay on FDR’s first 100 days, there was great back and forth within the Supreme Court over the constitutionality of the New Deal—with certain members of the court eventually apparently succumbing to the pressure of a proposed plan to “stack” the Supreme Court with newer, younger members.
A series of cases, starting with United States v. Butler (1936) and then Helvering v. Davis (1937), essentially ruled that Congress’ power to spend was non-reviewable by the Supreme Court… that there could be no constitutional challenge to spending plans, that if Congress said a spending plan was to “promote the general welfare” then that’s what it was.
Madison was right to be fearful—when taken into the context of an expansive interpretation of the Commerce Clause, it gives the federal government near-unlimited power. Either something is subject to federal regulation because it is an “item in or related to commerce” or it is subject to federal spending because it “promotes the general welfare.”
Building on this, LBJ moved forward with the Great Society in 1964, creating a series of massive spending and federal regulatory programs whose goal was to eliminate poverty and bring greater equity in social service programs.
Problematically, LBJ formed a series of “task forces” to craft these policies—admittedly because he didn’t want public input or scrutiny that would lead to criticism of the work his administration was doing.
Normally, when the executive branch engages in policymaking, those policies are governed by a series of rules aimed at ensuring public participation—both so that the public can offer their ideas at possible solutions, but also to ensure that the government isn’t abusing its powers.
Here, the Johnson administration did no such thing—creating, essentially, a perfect storm of problematic policymaking: a massive upheaval of government policy, coupled with massive spending proposals, coupled with little public scrutiny.
Had they allowed for greater public input, someone might have pointed out what the Founders knew: that there was a reason such social support has traditionally been either the purview of local governance or private charity, that such programs are much more effective when they are locally-driven and/or community based. Local services work because they better understand the challenges their local communities face.
And private charities provide more effective services because they not only have a vested interest in the outcomes, that vested interest is driven by building relationships centered around faith and hope. If government programs are impersonal, government programs whose management is far removed from the local communities is far worse.
The end result is twofold: faceless entitlement bureaucracies whose only incentive is self-perpetuation (not solving problems), and people who have little incentive to move themselves off of these programs.
Thus, Johnson’s Great Society was a massive failure. Not only did it not end poverty, it resulted in a devastating perpetual cycle of it. Enormous bureaucratic programs which still exist today—and which, despite pressures at various points in time (the work of President Bill Clinton and the GOP-led Congress after the 1994 election at reforming the nation’s welfare programs as one example), seem largely resistant to change or improvement.
The Founders knew that local and private charity did a better job at promoting “the general welfare” of a community than a federal program would. They knew the dangers of expansive government spending and the power that would accrue with it. Once again, as Justice Sandra Day O’Connor said in New York v. United States (1992), the “Constitution protects us from our own best intentions.”
Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.
A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.
Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.
He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.
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