Recovering the Lost General Welfare Clause

The General Welfare Clause of Article I, section 8, Clause 1 enumerates a power provide for common defense and general welfare. A literal interpretation of this clause (the general welfare interpretation) would authorize Congress to legislate for any national purpose, and therefore to address all national problemsincluding COVID-19 pandemicin ways that would be precluded under prevailing understanding of limited enumerated powers. But conventional doctrine rejects general welfare interpretation and construes General Welfare Clause to confer so-called Spending Power, a power only to spend, but not to regulate, for national purposes. This article argues that both text and drafting history of General Welfare Clause support reading it as a power to regulate on all national problems, such as environmental degradation, violence against women, or COVID-19 pandemic. It is only our superficial ideological commitment to enumerationism the doctrine of limited enumerated powers that causes us to depart from most evident textual interpretation of General Welfare Clause. Recovering lost General Welfare Clause is particularly important at this moment in constitutional history, when a conservative and supposedly originalist Supreme Court is poised to greatly constrict federal power to respond to pressing national problems in service of a tendentious and badly one-sided account of founding-era views on federalism.