After the Committee of Detail presented its final draft of a Constitution to the Convention on August 6th (as discussed in Part 3), debates began on the various aspects, provisions and clauses. The Constitution presented contained 23 Articles, with Article VII representing what would become Article I Sections 8, the Section that contains “general welfare”. Article VII of the proposed Constitution contains the enumerated powers as well as prohibitive powers similar to what would end up being Article I Section 9, among others. Article VII Section Clause 1 reads:
- The legislature of the United States shall have the power to lay and collect taxes, duties, imposts, and excises.
Just as with the following 17 clauses after this clause, general welfare or any similar variant does not appear anywhere within these 18 clauses.
It would not be until the next day a reference to General welfare in some would appear, but it would be tied to Article III of the proposed Constitution. Article III concerned establishing the Legislature to consist of two bodies, each having a negative on the other [not giving assent to the others bills], and when it should meet.
- Art. III.—The legislative power shall be vested in a Congress, to consist of two separate and distinct bodies of men, a House of Representatives and a Senate; each of which shall in all cases have a negative on the other. The legislature shall meet on the first Monday in December in every year.
The question arose when George Mason [Virginia] proposed to substitute “legislative acts'” for “all cases” in Article III. At this point in the Convention, the notion of the President being selected by the National Legislature was still the what was being used. In response to the substituting strictly legislative acts instead of all cases, Nathaniel Gorham [Massachusetts] contended the election of the President should be by joint ballot, with “The only objection against a joint ballot is, that it may deprive the Senate of their due weight; but this ought not to prevail over the respect due to the public tranquillity and welfare.” This use of a term similar to General Welfare is neither descriptive, or power enabling in any manner, but is a general statement to the overall political welfare of the nation, since it was in direct correlation with the selection of the President and ensuring a firm manner of doing so. It is also to note, that this motion did ultimately fail to carry.
Later in the Day George Read [Delaware] proposed to add, “subject to the negative to be hereafter provided” [to give the president an absolute negative/veto on legislation], He considered this essential to the preservation of Liberty and to “the public welfare”. But as earlier, this term is used as a general descriptive term, not in a power enabling manner, but in a manner from which another source of power is described specifically and this term be used to describe one of its attributes that of the Public welfare. This motion also failed to carry, since the concept of an absolute Executive negative had been virtually settled earlier in the Convention.
It was not until August 16th until Article VII of the draft constitution debates began. Considerable debate took place on the version submitted, with much attention focused on taxes on exports, before the Article was eventually agreed to, to exclude taxes on exports. This assent of the Convention to what would become Article I Section 8 Clause 1 contained no language of general welfare or similar terms, nor any broad or general statements. Over the next several days the proposed enumerated and prohibitive powers were debated, with some drawing more attention than others in debate and proposed changes to them. But at no time during these debates was a general power discussed or agreed to by the Convention. The closest the Convention came to in regards to general welfare may be the debate and subsequent agreement in the new Federal Government assuming the foreign debts of the states upon ratification.
The next instance of a general power or in this case a controlling power of the people occurs on August 20th. George Mason moved to enable Congress “to enact sumptuary laws”. [law designed to restrict excessive personal expenditures in the interest of preventing extravagance and luxury 1]. This was countered by Oliver Ellsworth [Connecticut] “The best remedy is to enforce taxes and debts. as far as the regulation of eating and drinking can be reasonable, it is provided for in the power of taxation”. This clause was soundly defeated shortly afterwards, and does not contain general welfare or a similar meaning. But it is worth noting the broad acceptance of taxation as presented by Ellsworth, that taxation could enact just such a thing. But it should also be noted it was only taxation that was addressed in the clause, not another term and that general welfare had yet to be added to the taxation clause, and also that Gouvernuer Morris [Pennsylvania] argued against the notion of sumptuary laws prior to its quick defeat in the Convention.
On August 21st, William Livingston [New Jersey] reported to the Convention from the committee of Eleven [made for the purpose of refining the Constitution] a clause regarding the Legislature.
- The legislature of the United States shall have power to fulfil the engagements which have been entered into by Congress, and to discharge, as well the debts of the United States, as the debts incurred by the several states, during the late war, for the common defence and general welfare.
This provision mainly deals with what will become Article VI in the assumption of the debts and contracts of the United States. The clause states a couple different things, that the United States will honor the contracts [engagements] prior to this Constitution, and that the debts incurred by the States and the United States during the late war [The American Revolution] for the common defense and general welfare will also be honored. As we have seen in previous instances, common defense and general welfare appear together, and as before are descriptive terms and do not convey power. The use of general welfare here can only be descriptive since it is referring to a past instance. The clause clearly states the debts of the United States and States during the late war. Well war for all intent is for the common defense and general welfare [to protect liberty, lives and property], so common defense and general welfare are simply describing what the past debts of the war were made for. As previously discussed in Part 1, general welfare under the Articles of Confederation [which the United States was operating under at the end of the war] did not in themselves convey any power with its use of the term general welfare. Here is another instance of general welfare being strictly a descriptive term in regards to another subject already present [war in this instance], and not a standalone phrase or clause on its own accord.
It is not again until August 22nd that either the general welfare clause or term again, or the clause clause of taxation come up in debate in the Convention, and this day two instances arise. The first occurs when the Committee of Eleven reports an addition to recommended to Article VII, section one, the portion in regards to taxation powers.- ‘for payment of the debts and necessary expenses of the United States; provided that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than—years.
The taxation clause changes recommended by the Committee of Eleven include no mention of general welfare, and the original version did not include it either. The second instance came later on in regards to Article VII, Section 2 Clause 16 [Note 1]
- and to provide, as may become necessary from time to time, for the well managing and securing the common property and general interests and welfare of the United States in such manner as shall not interfere with the government of individual states, in matters which respect only their internal police, or for which their individual authority may be competent.
Since the exact Clause this is is meant to change, it is more difficult to determine what the exact purpose of the addition, but appears most likely to be article VII, Section 1 Clause 17. But from what is written, it can be seen that general welfare and interest are used in a common descriptive manner. Common Property is used in conjunction with general interest and welfare, and is than tempered with an interference section with the states, and requiring it to be with respect with policing which the state is competent. This is to say in conjunction with the state, but on a not to interfere basis. So even if this use of general interest and welfare is more broad and power enabling, it is immediately restricted to when, where and how it may be used, and only to secure the common property and general interest and welfare. At the least this use of general interest and welfare is a descriptive term to what may be secured, at the most it is a broad term to what may be secured, but is also accordingly restricted to a defined narrow use.
This use of general interest and welfare is not being recorded as approved or declined, but it was probably defeated since it does not appear anywhere else in the records of the Convention.
On August 22 Article VII Section1 was amended and agreed to.
- “The legislature shall fulfil the engagements and discharge the debts of the United States; and shall have the power to lay and collect taxes, duties, imposts, and excises;”
It would not be until September 12 that even so much as welfare again appears in the records of the convention, when William Johnson [Connecticut] submits a draft of the Constitution to the Convention. In the final paragraph of his letter to the Convention he states:
- “That it will meet the full and entire approbation of every state is not, perhaps, to be expected. But each will doubtless consider, that, had her interest alone been consulted, the consequences might have been particularly disagreeable and injurious to others. That it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish.”
It is readily obvious that he is stating his desire that the best document they could make has been presented, and that its objectives include, “that it may promote the lasting welfare of that country so dear to us all”. He describes as promoting the lasting welfare, that is to encourage its prosperity. It does not appear he is stating it to be the power of the document, he is simply stating it as an overall purpose of the document.The last time general welfare is used in the Convention prior to the agreement to the final draft is on September 14, three days before the Constitution would be signed. This in regards to Article I Section 8 [the same portion as it was in the final draft and we know it today].
Benjamin Franklin [Pennsylvania] proposed after “Post Roads” to include a power, “to provide for cutting canals where deemed necessary.” After James Wilson [Pennsylvania] seconded the motion, Roger Sherman [Connecticut] objected, due to it being an expense to the United States. James Wilson suggested it may be a source of revenue, to which James Madison [Virginia] suggested an enlargement of the motion into a power.
- “to grant charters of incorporation where the interest of the United States might require, and the legislative provisions of individual states may be incompetent.”
The object was to secure easy communication between the states, for free intercourse, the political obstacles had already been removed, this would remove the natural [geographic] obstacles. This was seconded by Edmund Randolph [Virginia]. Rufus King [Massachusetts] thought it unnecessary, while James Wilson countered with:
- It is necessary to prevent a state from obstructing the general welfare.
After some more debate of on the lines of communication, and limiting the power to strictly canals for fear of monopolies implied by their construction, the motion and power failed to carry.
In regards to James Wilson use of general welfare, he was referring to its obstruction by the states, in this regard to communication and trade. This is an instance of the general term being used, but having a specific reference or meaning. The use here was is not a broad use, but a specific use, in context to an entire argument in regards to canals, their use and the impact they can have to the many states. This use in regards to the whole of the debate is anything but a a broad use, but is referring a specific topic, in regards to the whole prosperity of the states.This was the final use of general welfare or any similar term in the Convention, until the final draft of the Constitution was signed on September 17th, and to this point it is still not part of Article I section 8, or the preamble.
Part 1 : Part 2 : Part 3: Part 4 : Part 5 : Part 6 : Part 7 : Part 8
Note 1: Article VII, Section 2, Clause 16 does not correspond to a section and clause contained in James Madison’s notes, another notes, or the Committee of Detail, so the exact clause this is referring to is uncertain. Clause 16 of Article VII Section 1 is to build and equip the Navy, while Clause 17 is “To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions” Section 2 concerned treason.
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