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embrace also the power to lay and collect taxes, to regulate commerce, and so on, which are denied to the Congress of the Confederation, because not expressly granted. If this be true, why could not the Congress, if the words "general welfare” meant then what is now claimed for them, have laid taxes, raised an army, and regulated commerce, and so forth? But this is never attempted to do; but did not the exigencies of the times demand it? And yet these same words appear in the Constitution of the United States (Art. I, sec. 8), in the first specific power granted to Congress, between the grant and a limitation upon that grant-a location that imports sterility and not power; and it is claimed that their impotence in the Articles of Confederation, by transfer, has been changed to an omnipotent power for legislation of every kind and description that the wisdom of Congress may suggest or the cupidity of the States demand.
Mr. Hamilton, in his report on manufactures in 1791, which is referred to in another part of this paper, in speaking of the power of Congress to appropriate money under “the general welfare, says:
The only qualification of the generality of the phrase in question which seems to be admissible is this: That the object to which an appropriation of money is to be made must be general and not local-its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.
Now, observe his conclusion:
“No objection ought to arise from this construction from a supposition that it would imply a power to do whatever else should appear to Congress conduciwe to the general welfare. A power to appropriate money with this latitude, which is granted in express terms, would not carry a power to do any other thing not authorized in the Constitution, either expressly or by fair implication.
Under this statement of Mr. Hamilton, Congress, under "the general welfare of the United States," may appropriate money for any and for everything that Congress may deem for the general welfare. These words, with no limitation, are boundless in their scope and embrace everything which Congress may deem for the good of the whole country. But, to soften opposition to such a sweeping power, he adds:
“No objection ought to arise from this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the public welfare.”
If the words “ general welfare” embrace all, what else is left upon which legislation may be had? His limitation on this power is disclosed in these words:
"A power to appropriate money with this latitude, which is granted in express terms, would not carry a power to do any other thing not authorized in the Constitution, either expressly or by fair implication' that is, Congress, because granted, as he claims, in express terms, the power to appropriate money for the general welfare, to wit, to schools in the States, can not do "any other thing,” to wit, establish or create school systems in the States, because not authorized by the Constitution of the United States. This is a plain construction of his language. The result is that under this view Congress is prohibited from building a university or a school system in a State because the power has not been granted in the Constitution, but is allowed to support either with unlimited resources from the Treasury of the United States when built or established by the State. Why should Congress be denied the power to create what it may maintain and support after creation? Or why should Congress have power to support by taxation an institution or a system of schools which it is denied the right to create? And how
can such a position consist with the language of Judge Marshall in Gibbons v. Ogden (9 Wheaton, 198–199):
Congress is not empowered to tax for those purposes which are within the exclusive province of the States.''
Congress need not, in levying a tax, set forth the purpose for which the tax is intended, but by reason of the very nature of our Government such a tax, when levied by Congress, has excluded from its use and destination, as declared by Judge Marshall, “those purposes which are within the exclusive province of the States."
As against Mr. Hamilton's position, I invite careful consideration of the views of Mr. Madison-which are entitled to more force than those of any other man connected with the making of the Constitution found in a letter to Mr. Stevenson of 27th of November, 1830:
"If it be asked why the terms 'common defense and general welfare,' if not meant to convey the comprehensive power, which, taken literally, they express, were not qualified and explained by some reference to the particular power sub
joined, the answer is at hand that, although it might easily have been done, and experience shows it might be well if it had been done, yet the omission is accounted for by an inattention to the phraseology, occasioned, doubtless, by identity with the harmless character attached to it in the instrument from which it was borrowed.
“But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace not only all the powers particularly expressed, but the indefinite power, which has been claimed under them, the intention was not so declared? Why, on that supposition, so much critical labor was employed in enumerating the particular powers, and in defining and limiting their extent?
“The variations and vicissitudes in the modification of the clause, in which the terms 'common defense and general welfare' appear, are remarkable; and to be not otherwise explained, than by differences of opinion, concerning the necessity or the form of a constitutional provision for the debts of the revolution; some of the members, apprehending improper claims for losses by depreciated bills of credit; others, an evasion of proper claims, if not positively brought within the authorized functions of the new government; and others again, considering the past debts of the United States, as sufficiently secured by the principle, that no change in the government could change the obligations of the Nation. Besides the indications in the Journal, the history of the period sanctions this explanation.
“But, it is to be emphatically remarked, that in the multiple of motions, propositions, and amendments, there is not a single one having reference to the terms 'common defense and general welfare,' unless we were so to understand the proposition containing them, made on August 25, which was disagreed to by all the States, except one.
“The obvious conclusion to which we are brought is that these terms, copied from the Articles of Confederation, were regarded in the new, as in the old instrument, merely as general terms, explained and limited by the subjoined specifications, and therefore requiring no critical attention or studied precaution.
“That the terms in question. were not suspected in the convention which formed the Constitution of any such meaning as has been constructively applied to them may be pronounced with entire confidence. For it exceeds the possibility of belief that the known advocates in the convention for a jealous grant and cautious definition of Federal powers should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restriction and definitions elaborated by them.
“Consider for a moment the immeasurable difference between the Constitution limited in its powers to the enumerated objects and expanded, as it would be, by the import claimed for the phraseology in question. The difference is equivalent to two constitutions of characters essentially contrasted with each other, the one possessing powers confined to certain specific cases, the other extended to all cases whatsoever. For what is the case that would not be embraced by a general power to raise money, a power to provide for the general welfare, and a power to pass all laws necessary and proper to carry these powers into execution, all such provisions and laws superseding at the same time all local laws and constitutions at variance with them? Can less be said, with the evidence before us furnished by the journal of the convention itself, than that it is impossible that such a Constitution as the latter would have been recommended to the States by all the members of that body whose names were subscribed to the instrument?
“Passing from this view of the sense in which the terms 'common defense and general welfare' were used by the framers of the Constitution, let us look for that in which they must have been understood by the conventions, or rather by the people, who, through their conventions, accepted and ratified it. And here the evidence is, if possible, still more irresistible that the terms could not have been regarded as giving a scope to Federal legislation infinitely more objectionable than any of the specified powers which produced such strenuous opposition and calls for amendments which might be safeguards against the dangers apprehended from them.
“Without recurring to the published debates of those conventions, which, aś far as they can be relied on for accuracy, would, it is believed, not impair the evidence furnished by their recorded proceedings, it will suffice to consult the lists of amendments proposed by such of the conventions as considered the powers granted to the Government too extensive, or not safely defined.
“Besides the restrictive and explanatory amendments to the text of the Constitution, it may be observed that a long list was premised under the name and in the nature of 'Declaration of rights'; all of them indicating a jealousy of the Federal powers and an anxiety to multiply securities against a constructive enlargement of them. But the appeal is more particularly made to the number and nature of the amendments proposed to be made specific and integral parts of the costitutional text.
“No less than seven States, it appears, concurred in adding to their ratifications a series of amendments which they deemed requisite. Of these amendments 9 were proposed by the convention of Massachusetts, 5 by that of South Carolina, 12 by that of New Hampshire, 20 by that of Virginia, 33 by that of New York, 26 by that of North Carolina, and 21 by that of Řhode Island.
“Here are a majority of the States proposing amendments, in one instance 33 by a single State; all of them intended to circumscribe the power granted to the general government by explanations, restrictions, or prohibitions without including a single proposition from a single State referring to the terms 'common defense and general welfare,' which, if understood to convey the asserted power, could not have failed to be the power most strenuously aimed at, because evidently more alarming in its range than all the powers objected to put together. And that the terms should have passed altogether unnoticed by the many eyes which saw danger in terms and phrases employed in some of the most minute and limited of the the enumerated powers must be regarded as a demonstration; that it was taken for granted that the terms were harmless, because explained and limited, as in the 'Articles of Confederation,' by the enumerated powers which followed them.
“A like demonstration, that these;s' ms were not understood in any sense, that could invest Congress with powers not otherwise bestowed by the constitutional charter, may be found in what passed in the first session of Congress when the subject of amendments was taken up, with the conciliatory view of freeing the Constitution from objections, which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms 'common defense and general welfare unnoticed in the long list of amendments brought forward in the outset, but the Journals of Congress show that in the progress of the discussions not a single proposition was made in either branch of the Legislature, which referred to the phrase, as admitting a constructive enlargement of the granted powers and requiring an amendment guarding against it. Such a forbearance and silence on such an occasion, and among so many members, who belonged to a part of the Nation, which called for explanatory and restrictive amendments, and who had been elected as known advocates for them, can not be accounted for without supposing that the terms common defense and general welfare' were not, at that time, deemed susceptible of any such construction as has since been applied to them.”
Surely nothing more need be added to this lucid and conclusive statement.
THE MEANING OF THE GENERAL WELFARE CLAUSE AS SHOWN BY THE DISCUSSIONS
AND ACTIONS OF THE FEDERAL CONVENTION UNTIL ITS FINAL LOCATION IN ARTICLE I, SECTION 8, PARAGRAPH 1.
To trace the "general welfare clause" through the Federal Convention, to determine its real meaning, is of the first importance. When the convention met, much doubt was expressed as to whether their powers permitted them to go further than amend the Articles of Confederation, but before the convention had finished its work it was generally felt that, as their work was merely a proposal, to be ratified by the people in their sovereign capacity in the different States, their powers were not limited to the amendment of the Articles of Confederation. Four propositions were brought to the convention. One by Edmund Randolph, of Virginia, which was offered in the form of 15 resolutions on the 29th of May, 1787. On the same day Mr. Charles Pinckney submitted his plan; Mr. Hamilton's plan was never submitted to the convention, but was read to it on June 18, 1787. On June 13, and again on June 19, 19 resolutions were reported by the Committee of the Whole to the convention. On June 15, 1787, Mr. Patterson offered his plan to the convention.
On the powers of Congress it is of interest to note the proposals of the different plans. Mr. Hamilton proposed that the Congress of the United States should be clothed-“with power to pass all laws whatsoever subject to the negative hereafter menIn his fourth proposition he proposed that the executive should “have a negative upon all laws about to be passed." Mr. Patterson's plan as to the powers of Congress provided:
“That in addition to the powers vested in the United States in Congress by the present existing Articles of Confederation, they be authorized to pass acts for raising a revenue by levying a duty or duties on all goods and merchandise of foreign growth or manufacture imported into any part of the United Statesby stamps on paper, vellum, or parchment, and by a postage on all letters and packages passing through the General Post Office to be applied to such Federal purposes as they shall deem proper and expedient. (Elliott's Debates on Fed. Const., 1787, p. 208.)”
Mr. Randolph's plan provided;
“That the National Legislature ought to be empowered to enjoy the legislative right vested in Congress by the confederation; and, moreover, to legislate in all cases to which the separate States are incompetent or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening, in the opiniou of the National Legislature, the articles of union or any treaty subsisting under the authority of the Union.” (Id. p. 180.)
Mr. Charles Pinckney's draft provided:
"SECTION 1. The Legislature of the United States shall have power to lay and collect taxes, duties, impost, and excises;
"To regulate commerce with all nations and among the several States;
The remaining powers being practically those in the present Constitution, except the one giving the power to Congress to appoint a Treasurer by ballot.
On the 18th of June, after the convention had been in session nearly a month and Mr. Hamilton had participated but little, if any, in its debates, he offered a sketch for a constitution, the cardinal features of which show his imperialistic convictions; the first clause of which is as follows:
“I. The supreme legislative power of the United States of America' to be vested in two different bodies of men—the one to be called the Assembly, the other the Senate-who together shall form the Legislature of the United States, with power to pass all laws whatsoever, subject to the negative hereafter mentioned."
This clearly set forth the “general welfare” clause.
“The supreme executive authority of the United States to be vested in a governor, to be elected to serve during good behavior.
The authorities and functions of the Executive to be as follows: To have a negative on all laws about to be passed and the execution of all laws passed.”
Article VI provides:
“All laws of the particular States contrary to the Constitution or laws of the United States to be utterly void; and the better to prevent such laws being passed the governor or president of each State shall be appointed by the General Government and shall have a negative upon the laws about to be passed in the State of which he is the governor or president.”
“No State to have ar forces, land or naval; and the militia of all the States to be under the sole and exclusive direction of the United States, all officers of which to be appointed and commissioned by them.”
Had this proposition for a constitution been adopted it would have compared favorably with that of any monarchical Government in Europe. Mr. Hamilton was a wonderful man, a patriotic man, but his belief in republican principles was extremely attenuated. He believed in and desired a strong centralized government. Think of the effect of the Senate being elected during good behavior or the President during good behavior! Think of the power of the President against the wishes of Congress to deny the passage of any and every law which he did not approve! This was not the veto power, but the power to say to Congress that as he did not approve, therefore a bill could not become law. Such a provision practically exists in the constitution of Japan to-day, which states that the legislative power rests with the Emperor, with the approval of the Diet. Consider for a moment the power given to the Senate, whose Members are to hold office during good behavior, to have the sole power of declaring war. Consider what “a wheel within a wheel” would have resulted had the Federal Government the power of appointing the governor of each State, and that governor had the power to negative any law passed by his State. Not only is power by these articles given the President practically to legislate for the United States but to legislate for the States, because under it he would have the power of appointing the governor of the State, who would have the power to negative any law passed by the legislature of any such State, and then the capstone of the arch is seen in Article XI, where the militia of the States, which under the present Constitution is reserved to the States for their protection and defense, is put under the sole and exclusive direction of the United States in order to stifle any spark of resistance that this monarchical system might create in the minds of the people. And in his speech in the convention presenting this scheme (Madison Papers, Vol. V, pp. 202-203), he said "that the British Government was the best in the world, and that he doubted much whether anything short of it would do in America."
And discussing the conflict between the powers of the States and of the Congress as proposed in the Patterson plan, he said:
“Giving powers to Congress must eventuate in a bad government or in no government. The plan of New Jersey, therefore, will not do. What then is to be done? Here he was embarrassed. The extent of the country to be governed discouraged him. The expense of a general government was also formidable, unless there were such diminution of expense, on the side of the State government, as the case would admit. If they were extinguished, he was persuaded that great economy might be obtained by substituting a general government. He did not mean, however, to shock the public opinion by proposing such'a measure. On the other hand, he saw no other necessity for declining it. They are not necessary for any of the great purposes of commerce, revenue, or agriculture. There must be district tribunals; corporations for local purposes. But cui bono the vast and expensive apparatus now appertaining to the States.
How different this view, which relegates the States to the scrap heap, and that would have merged the people into one body politic, from that of Judge Marshall, the great Chief Justice, when he used those wonderful words:
“No political dreamer was ever wild enough to think of breaking down the lines which separate the States and of compounding the American people into
(McCullouch v. Maryland, 4 Wheat. 403.) How different from the judgments of Marshall, and Taney, Chase, and Waite, Fuller and White, and Taft, who have often proclaimed the doctrine that to pull down the States would be to destroy the superstructure of the Federal Government.
On the next day (Id. 212) Mr. Hamilton said he“had not been understood yesterday. By an abolition of the States, he meant that no boundary could be drawn between the National and State legislatures; that the former, therefore, must have indefinite authority. If it were limited at all, the rivalship of the States would gradually subvert it. Even as corporations, the extent of some of them, as Virginia and Massachusetts, would be formidable. As States, he thought they ought to be abolished."
The explanation only emphasizes his former position.
“My situation is disagreeable, but it would be criminal not to come forward on a question of such magnitude. I have well considered the subject, and am convinced that no amendment of the Confederation can answer the purpose of a good Government, so long as the State sovereignties do, in any shape, exist.” (Yates's Minutes. Elliott's Debates on Federal Constitution, 1787, vol. 1, p. 464.
And further (Id., p. 464): “Such are the lessons which the experience of others affords us, and from whence results the evident conclusion that all Federal governments are weak and distracted. To avoid the evils deducible from these observations, we must establish a general and national government, completely sovereign, and annihilate the State distinctions and State operations; and unless we do this no good purpose can be answered."
And further (Id., p. 466):
“What can be the inducements for gentlemen to come 600 miles to a national legislature? The expense would at least amount to 100,000 pounds. This,
one common mass.