General Welfare (Part 3) Debates in Convention, Committee of Detail

As already discussed [in Part 2]on July 26th, the Convention broke into Committee of Detail [selected July 24th] until August 6th. The Committee consisted of five members Oliver Ellsworth (Connecticut) Nathaniel Gorham (Massachusetts) Edmund Randolph (Virginia) John Rutledge (South Carolina) James Wilson (Pennsylvania). The purpose of this committee was to make a draft constitution for the Convention as agreed to through this point of debating. Max Farrands records on the Convention contain James Wilson’s [Pennsylvania] notes from the committee, the only records of the committee that may in fact be available from the committee. James Madison’s Notes [Virginia] do not contain the committee with July 26th-Aug 6th having no entries, similarly Rufus King [Massachusetts] from July 15-Aug 7th. James McHenry [Maryland] did not return to the Convention until Aug 6th, after departing for personnel reason in Jun. Robert Yates [New York] last entry in from July 5th, before departing the convention, William Pierce [Georgia] does not address the Committee, nor does William Patterson [New York], or Alexander Hamilton [New york], though several do mention the committee did take place during this time, these are among the most common records of the convention itself.

During the Committee of Detail, Five drafts of various detail are contained in Wilson’s Notes, some more focused on one aspect more than another. The first draft in the Committee of Detail was a rough and simple draft of what was to be in the new Constitution. In some parts was specific, while in other parts only stated general provisions, the details of which would be determined at a later time. No preamble is included in the first draft, and in part 8 of the first draft found in the Committee of Detail the following clause is written in regards to the powers of the National Legislature

• That the Legislature of the United States ought to possess the legislative Rights vested in Congress by the Confederation; and moreover to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.

As is seen since the New Jersey Plan was introduced on June 15^th, the term “which the states are separately incompetent” is used again. Also used in general interest and Harmony of the United States, though no other powers are designated in the ability to make law are found in this draft. This part of this draft appears to be general statement of the objective of what the Legislature should be able to do, as indicated in the first sentence “the Legislature of the United States ought to possess”, and is not explicit it what is can or cannot do. It does however show the desire to make it stronger than is seen in the Articles of Confederation, “to legislate in all Cases for the general Interests of the Union”, a power not conveyed in the Articles of Confederation.

In regards to the general Interests of the Union, does not appear specific to either a broad or relegated power, but rather simply referring to matters which affect the Union as a whole. As for Harmony of the United States, the roughness of the concepts is apparent since this concept does not appear in the final draft of the constitution and changes along the way in debates, even so the intention of it is clear for this clause, to give the Congress the power to negative State laws which are contrary to the general harmony of the union. Though no example is given it appears the intent of this clause is to prevent states from enacting laws which may be detrimental to one or more other states, or the relationship of the United States as a whole to foreign states.

The second draft in the Committee of Detail is much more of an outline than the first draft, though some powers of Congress are specified such as a Council of revision appealing disputes between states, most are not what we would be familiar with today, and no mention of any type of general power is included in them. The second draft does contain a generic preamble.

• A Confederation between the free and independent States of N. H. &c. is hereby solemnly made uniting them together under one general superintending Government for their common Benefit and for their Defense and Security against all Designs and Leagues that may be injurious to their Interests and against all Forc[e] and Attacks offered to or made upon them or any of them

As with other preamble, this describes the purpose of the document. In it the term common Benefit is used, which is strikingly different from general welfare. Common Benefit or Common Advantage is clearly used in regards to the National [Superintendent] Government exercising powers that benefit or give an advantage to all, and for their defense against foreign states. This differs from general welfare in that general welfare does not itself imply it must be for the benefit of all or even most, but rather for the nation in general while it may not be for the benefit or advantage of the some. But since this is also part of the preamble, and does not exist in a power enabling clause, this is used as purely a descriptive term for what the objective of the government is to do, and not to imply a power.

Of the powers in the second draft that are delegated one of note deserves attention in regards to general welfare.

• 10. Each State retains its Rights not expressly delegated — But no Bill of the Legislature of any State shall become a law till it shall have been laid before S. &. H. D. in C. assembled and received their Approbation.

Here the express rights of powers not specifically delegated to the Congress, are clearly reserved to the states. That being it strongly limits to what congress can do in specific terms, and does not leave in doubt what Congress does and does not possess. It also requires that all Legislation from the States must receive the assent of Congress prior it to be enacted into law. This hails back to the first draft in which “the Harmony of the United States may be interrupted by the Exercise of individual Legislation”, was included in the powers to the legislature. Here with this clause we see that concept developed as to how it is to be done, as we also see the powers of Congress being developed from the rough first draft to here, though far from complete and in mainly context only.

The third draft of the Constitution the discussion of a preamble occurs, and also more specific enumerated and prohibitive powers to the Legislature are addressed. For the preamble, it is discussed that a preamble should be part of the Constitution, but it should only be written after the final draft is completed first. The discussion does states that the preamble should

• But the object of our preamble ought to be briefly to (represent) declare, that the present foederal government is insufficient to the general happiness, that the conviction of this fact gave birth to this convention

As we saw in the second draft of the preamble, the basic objective of the document is stated, even though in less detail than draft two. But it does state general happiness, used as a descriptive term, in a descriptive section, here stating that the Articles of Confederation are not ensuring the General Happiness of the United States. It is stating the Articles of Confederation does not have the power and is insufficient to ensure the General Happiness for the people and States of the United States.

The third draft also includes much more detailed powers and restrictions of the Legislature. This is broken into three parts, under the title “The Legislative”. Part 1 is the legislative powers (with exclusions and restriction), Part 2 is Certain Exception, and Part 3 is Certain Restriction. [Note this is the transcript from Wilson’s Notes, it is not a formatting error]

Part 1

• 1. To raise money by taxation, unlimited as to sum, for the (future) past (or) 〈&〉 future debts and necessities of the union and to establish rules for collection

Exception(s)

• No Taxes on exports. —

Restrictions

• 1. direct taxation proportioned to representation
• 2. No (headpost) capitation-tax which does not apply to all inhabitants under the above limitation (& to be levied uniform)
• 3. no (other) indirect tax which is not common to all
• 4. (Delinquencies shall be be distress — [illegible words])
• 4. To regulate commerce 〈both foreign & domestic〉
• 2. 〈no State to lay a duty on imports —〉

Part 1 of above states what the Legislature may do, here in regards it may raise money and how it may spend it, [as well as prohibiting states from Taxing imports in section 2]. This is followed by Exceptions of what it may not tax under any circumstance, than by restriction certain manner that taxes may only be applied in certain aspects. Also contained in Part 1 is the manner in which tax revenue may be used, to pay for past and future debts and necessities of the union. The necessities of the union may be extensive and does not include a limiting factor in the clause. But following Part 1, Part 2 and 3 is a list exceptions and restriction, of what the Legislature may not do, when excursing its power in Part 1.

2. Exceptions

• 1. no Duty on exports.
• 2. no prohibition on (such) 〈ye〉 Importations of 〈such〉 inhabitants 〈or People as the sevl. States think proper to admit〉
• 3. no duties by way of such prohibition.

Part 2 list what the Exceptions, not what is exempt from the previous mentioned restrictions, but what exemptions to what the Legislature may not do in any case, these are prohibitive clauses. In Part 1 the Legislature is given the power to tax, which is immediately restricted to manners in which it may tax, and how some must be applied, it also is immediately prohibited from taxing other aspects.

Only regulating commerce and the importation of inhabitants [Slaves] the restrictive and exclusive clauses have been in regards to Taxing and duties, though both commerce and importation of slaves would fall under these notions in some respect. To this point no restriction or exceptions have been addressed as in how it may or not be applied to debts and necessities of the union. Part 3 does just this, it list what restrictions the Legislature has on it in regards to making laws [accumulating debts].

3 Restrictions

• 1. A navigation act shall not be passed, but with the consent of (eleven states in) 〈⅔d. of the Members present of〉 the senate and (10 in) 〈the like No. of〉 the house of representatives.
• (2. Nor shall any other regulation — and this rule shall prevail, whensoever the subject shall occur in any act.)
• (3. the lawful territory To make treaties of commerce (qu: as to senate)[              ] Under the foregoing restrictions)
• 4. (To make treaties of peace or alliance(qu: as to senate)NA under the foregoing restrictions, andwithout the surrender of territory for an equivalent,and in no case, unless a superior title.)
• 5. To make war〈: (and)〉 raise armies. 〈& equip Fleets.〉
• 6. To provide tribunals and punishment for mere offences against the law of nations.〈Indian Affairs〉
• 7. To declare the law of piracy, felonies and captures on the high seas, and captures on land.〈to regulate Weights & Measures〉
• 8. To appoint tribunals, inferior to the supreme judiciary.
• 9. To adjust upon the plan heretofore used all disputes between the States 〈respecting Territory & Jurisdn〉
• 10. To (regulate) 〈The exclusive right of〉 coining 〈money (Paper prohibit) no State to be perd. in future to emit Paper Bills of Credit witht. the App: of the Natl. Legisle nor to make any (Article) Thing but Specie a Tender in paymt of debts〉
• 11. To regulate naturalization
• 12. (To draw forth the) 〈make Laws for calling forth the Aid of the〉 militia, (or any part, or to authorize the Executiveto embody them) 〈to execute the Laws of the Unionto repel Invasion to inforce Treaties suppress internal Comns.〉
• 13. To establish post-offices
• 14. To subdue a rebellion in any particular state, on the application of the legislature thereof.〈of declaring the Crime & Punishmt of Counterfeitg it〉
• 15. To enact articles of war.
• 16. To regulate the force permitted to be kept in each state.
• (17. To send embassadors)〈Power to borrow Money-To appoint a Treasurer by (joint) ballot.〉
• 18. To declare it to be treason to levy war against or adhere to the enemies of the U. S.
• 19. (To organize the government in those things, which)

These are listed as restrictive clauses, to what the Legislature may act to do is past and future debts and the necessities of the Union. So the first part expresses the ability of the Legislature to tax, pay for debts and make laws for the necessities of the Union, and by the end of the Congressional powers sections, states how taxes and duties may be applied, what may not have taxes or duties, and how the Legislature is restricted in what it may make debts for and what it can make laws for.

The fourth draft from the Committee contains two separate sections regarding the powers of Congress. The first is under the section labeled “An Appeal for the Correction of all Errors both in Law and Fact”. But this first part appears to be the first draft of correction, since it differs from the second in the same draft.

• That the United States in Congress be authorised — to pass Acts for raising a Revenue, — by levying Duties on all Goods and Merchandise of foreign Growth or Manufacture imported into any Part of the United States — by 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 foederal Purposes as they shall deem proper and expedient — to make Rules and Regulations for the Collection thereof — to pass Acts for the Regulation of Trade and Commerce as well with foreign Nations as with each other to lay and collect Taxes

What the Congress “shall deem proper and expedient” in regards to the application of revenues raised by the various methods mentioned appears to infer Congress with substantial power in the manner of making law. But since this under the “Correction of Errors” portion, is this addressing what changes are desired to be made from or changes to? Since many of these provisions are not expressed in previous drafts it appears that the desire is to change to these provisions.

Also included is an enumerated powers section as seen in draft three.

• The Legislature of U. S. shall have the exclusive Power — of raising a military Land Force — of equiping a Navy — of rating and causing public Taxes to be levied — of regulating the Trade of the several States as well with foreign Nations as with each other — of levying Duties upon Imports and Exports — of establishing Post-Offices, and raising a Revenue from them — of regulating Indian Affairs — of coining Money — fixing the Standard of Weights and Measures — of determining in what Species of Money the public Treasury shall be supplied.

In this draft, the ability to tax, duties and postage are simplified, and the ability to apply these revenues to, “such foederal Purposes as they shall deem proper and expedient” is no longer included, nor is any similar or like phrase or clause.

Here powers are enumerated similar to what was seen in draft three, the difference with these enumerated powers is the statement “The Legislature of the U.S. shall have exclusive Power”. It is not limiting power strictly to these provisions included, but rather it is granting Congress the sole power to make law on these provisions. Here we see the intention or at the very least the ability of the Legislature to have a more broad scope of power than is seen in any previous version, that is not well defined to limit, but instead gives exclusive power with few limits.

In the final draft from the Committee of Detail the one presented to the Convention as a whole on August 6^th is draft five. This is the refined draft it includes a preamble and also enumerated and prohibitive powers to the Congress. In the preamble, it is simple stating the states ordain, declare and establish this Constitution for themselves and posterity.

The powers and restriction on Congress are in Article 8.

• The Legislature of the United States shall have the (Right and) Power to lay and collect Taxes, Duties, Imposts and Excises; to regulate (Naturalization and) Commerce 〈with foreign Nations & amongst the several States〉; to establish an uniform Rule for Naturalization throughout the United States; to coin Money; to regulate the (Alloy and) Value of 〈foreign〉 Coin; to fix the Standard of Weights and Measures; to establish Post-offices; to borrow Money, and emit Bills on the Credit of the United States; to appoint a Treasurer by Ballott; to constitute Tribunals inferior to the Supreme (national) Court; to make Rules concerning Captures on Land or Water; to declare the Law and Punishment of Piracies and Felonies committed on the high Seas, and the Punishment of counterfeiting the 〈Coin〉 (and) 〈of the U. S. &〉 of Offences against the Law of Nations; (to declare what shall be Treason against the United States;) 〈& of Treason agst the U: S: or any of them; not to work Corruption of Blood or Forfeit except during the Life of the Party;〉 to regulate the Discipline of the Militia of the several States; to subdue a Rebellion in any State, on the Application of its Legislature; to make War; to raise Armies; to build and equip Fleets, to (make laws for) call(ing) forth the Aid of the Militia, in order to execute the Laws of the Union, (to) enforce Treaties, (to) suppress Insurrections, and repel invasions; and to make all Laws that shall be necessary and proper for carrying into (full and complete) Execution (the foregoing Powers, and) all other powers vested, by this Constitution, in the Government of the United States, or in any Department or Officer thereof;

The powers listed here are defined as “the Legislature of the United States shall have the (Right and Power to…”. This is stating what specific rights they have been granted in legislating. Nowhere in the final draft from the Committee of Detail does general welfare or any similar term appear. The powers of Congress are defined stated clearly, with no broad or general term included.

Much debate lies ahead with what the Committee of Detail will present, with many changes still to take place before the Constitution is to be finished. But as the Committee of Details submits its draft for a Constitution, it does not contain General welfare, and similar phrase nor does it grant Congress in any manner a broad scope of powers..

To this point in the Convention still the only references to general welfare or similar phrases have been in reference to or from the Articles of Confederation, or used in a similar if not the same manner as used in the Articles of Confederation, which as previously discussed conveyed no power specifically to the Congress Assembled. Rather it was used as a descriptive term, not a power enabling term, and to this point, only one instance of giving the Congress a broad scope of power in draft has been seen, in the correction of errors section of draft four in the Committee of Detail, which in the subsequent part of the draft had been removed, and did not appear in the final draft from the committee. As it stands, general welfare is not included in the current draft going back to the full convention, and to this point in the convention, is only a descriptive term, and not a power giving one.

 

Part 1 : Part 2 : Part 3: Part 4 : Part 5 : Part 6 : Part 7

References"
Max Farrands records on the Convention