Among some of the concerns addressed by the Anti-Federalist [there were many concerns among them] Article I Section 8 Clause 1and general welfare was among them, and written about numerous times. Ironically, or perhaps prophetically the concerns addressed were generally that this clause and “general welfare”, was too great of a power, since it would be under only Congresses discretion to determine what was in the “general welfare” and this use would not only be used, but abused at the costs of the States and the people. What the Anti-Federalist show is the first real discussion of what the term may mean, and the power it may convey to the Congress.
The earliest time general welfare is seen in an Anti-Federalist writing is the Foreign Spectator on October 2, 1787. But has been mentioned before in Part 1, this use is general as to the purpose of the government, to ensure the “general welfare” or common good of the People, States and Nation. This was not used in a sense of power of government, but a descriptive term of the purpose of government. The same use is also found in Cato III (10-25-1787), Brutus V (12-13-1787), A Landlover VII (12-17-1787), Brutus XI (1-31-1788), Brutus XII (2-7-1788), Philadelphia XI (3-8-1788) and Fabious V (4-22-1788). Though a few of these references did address the preamble directly, the usage of the term is still used in a general manner as to purpose and not power. During some of the discussion some of the papers mention the ability of the Federal Government to either punish or compel States to abide by the treaties or such of the United States. This is defended by some Pro-Federalist writings in ensuring the “general welfare” of the United States (Such as A Citizen of Philadelphia in response to Brutus on 11-8-1787). Though A Citizen of Philadelphia, does respond using general welfare and it does discuss a power of Congress (or the Senate in this case in ratifying a treaty), the use is not in reference to Article I Section 8 Clause 1, but more or less a discussion into the supremacy of the Constitution according to Article VI. These instances will also not be discussed here, since they do not relate to general welfare as being discussed in this article, but do acknowledge there may be instances of “general welfare” being referred to a power given to the Federal Government, but that it is outside of this scope.The first instance of concern over the clause itself occurs in A Federal Republican (Author Unknown) on November 28, 1787, ironically not a true Anti-Federalist, rather Pro-Federalist, but does address what will become common concerns.
- Can any state, or the citizens of any state think themselves secure when they are conscious that their own laws will not avail them in competition with those of Congress? Suppose Congress in making its provision for the general welfare of the United States, and framing those laws which shall be deemed necessary and proper for carrying into execution all their powers, should, in the complex body of them, oppose the general system of state policy, what must be the consequence?
- The legislature must have exclusive jurisdiction in all matters where the states have a mutual interest. There are some regulations in which all the states are equally concerned there are others which in their operations are limited to one state. The former belong to Congress, the latter to the respective legislatures. No one state has a right to supreme controul in any affair in which the other states have an interest; nor should Congress interfere in any affair which respects one state only.
However by leaving too much power in the hands of Congress, it may find ways to be oppressive upon the people or states through acts (Federal Republican speaks directly to taxation as such is the clause) in the name of “general welfare”.
- Now, what can be more comprehensive than these words? Every species of taxation, whether external or internal are included. Whatever taxes, duties, and excises that the Congress may deem necessary to the general welfare may be imposed on the citizens of these states and levied by their officers. The congress are to be the absolute judges of the propriety of such taxes, in short they may construe every purpose for which the state legislatures now lay taxes, to be for the general welfare, they may seize upon every source of taxation, and thus make it impracticable for the states to have the smallest revenue, and if a state should presume to impose a tax or excise that would interfere with a federal tax or excise, congress may soon terminate the contention, by repealing the state law,…Indeed every law of the states may be controuled by this power. The legislative power granted for these sections is so unlimited in its nature, may be so comprehensive and boundless in its exercise, that this alone would be amply sufficient to carry the coup de grace to the state governments, to swallow them up in the grand vortex of general empire.
Centinel expounds on the concerns of Federal Republican, in the abuse on Congress in the power of taxation. Centinel speaks about how the Congress may use the power of taxation to starve the States of their ability to raise revenue by nullifying States laws. His concern is it may be a method to dissolve or render the State governments impotent and ineffective to have all authority resting solely under its umbrella. This thought is along the same lines of concern that Federal Republican, that the Congress is the sole power to decide what is in the “general welfare” and what is not. If Congress decides it is in the “general welfare” it would simply need to act upon it and have not consequence to the power structure it may be imposing on that of the States or the People.
- Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it [general welfare] will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy: it opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country.
Brutus contends that this clause of general welfare, and coupled with necessary and proper, does not at all bind the Congress in what laws it may pass, since it is also the only body that is to judge what is for the “general welfare, and what is necessary and proper to execute it”.
- It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government. It requires the greatest talents of a statesman, and the most numerous and exact provisions of the legislature. The command of the revenues of a state gives the command of every thing in it.-He that has the purse will have the sword, and they that have both, have every thing; so that the legislature having every source from which money can be drawn under their direction, with a right to make all laws necessary and proper for drawing forth all the resource of the country, would have, in fact, all power.
On December 12, 1787 Pennsylvania became the second state to ratify the Constitution after Delaware by a 2:1 vote if favor (46-23). But among those who voted Nay on the ratification present The Dissent of the Minority of the Pennsylvania Convention on December 18, 1787, addressing their concern on the Constitution. Among the concerns addressed by the minority dissent was general welfare. Just as Brutus was concerned about this power in regards to taxation and being combined with necessary and proper, so is the minority dissent in Pennsylvania. They are concerned this power may not leave an ability for the States to raise revenue and may be a means to abolish the State Governments or render them powerless.
- As there is no one article of taxation reserved to the state governments, the Congress may monopolise every source of revenue, and thus indirectly demolish the state governments, for without funds they could not exist, the taxes, duties and excises imposed by Congress may be so high as to render it impracticable to levy further sums on the same articles;
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The Congress might gloss over this conduct by construing every purpose for which the state legislatures now lay taxes, to be for the "general welfare," and therefore as of their jurisdiction. And the supremacy of the laws of the United States is established by article 6th, viz. "That this constitution and the laws of the United States, which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; any thing in the constitution or laws of any state to the contrary notwithstanding." It has been alledged that the words "pursuant to the constitution," are a restriction upon the authority of Congress; but when it is considered that by other sections they are invested with every efficient power of government, and which may be exercised to the absolute destruction of the state governments, without any violation of even the forms of the constitution, this seeming restriction, as well as every other restriction in it, appears to us to be nugatory and delusive; and only introduced a blind upon the real nature of the government. In our opinion, "pursuant to the constitution," will be coextensive with the will and pleasure of Congress, which, indeed, will be the only limitation of their powers.
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The new constitution, consistently with the plan consolidation, contains no reservation of the rights and privileges of the state governments, which was made in the confederation of the year 1778.
As a remedy to this specific issue, the minority proposed the following Amendment.
- 9. That no law shall be passed to restrain the legislatures of the several states from enacting laws for imposing taxes, except imposts and duties on goods imported or exported, and that no taxes, except imposts and duties upon goods imported and exported, and postage on letters shall be levied by the authority of Congress.
Brutus VI followed up from his previous article (Brutus V) on December 27, 1787. Brutus continues with those points, and contends that the power to raise revenue should reside mainly in the States and not at the whim of the Federal Government. He encourages measures to ensure this, that the Federal Government is limited in its ability to raise revenue and not allow general welfare be a open ended ability for the Federal Government to control issue that should be handled by the States instead. When he discussed what the limits of the power, he acknowledged that both sides were advocating for the “general welfare” but he follows up with a most interesting point.
- It is as absurd to say, that the power of Congress is limited by these general expressions, "to provide for the common safety, and general welfare," as it would be to say, that it would be limited, had the constitution said they should have power to lay taxes, &c. at will and pleasure. Were this authority given, it might be said, that under it the legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good, and happiness.
The first point is he directly addresses general welfare as a “general expression”. Second he also refers to it in a meaning of purpose and generality, “promote the public good and happiness”. He nearly contends it to be a powerless statement, but does not go to that point. He still argues that this statement may render the ability of the states to raise revenue limited subject to the Congress, and the potential use of the power is too broad. In the end of the Article, similar to what the Pennsylvania Minority Dissent had done, Brutus recommends a means to ensure State power, in this case specifically in regards to revenue.
- Upon the whole, I conceive, that there cannot be a clearer position than this, that the state governments ought to have an uncontroulable power to raise a revenue, adequate to the exigencies of their governments; and, I presume, no such power is left them by this constitution.
In Brutus VIII from January 10, 1788, Brutus once again addresses general welfare, in a portion in which he was discussing the power of the Congress to raise Armies as being indefinite and unlimited.
- If the general legislature deem it for the general welfare to raise a body of troops, and they cannot be procured by voluntary enlistments, it seems evident, that it will be proper and necessary to effect it, that men be impressed from the militia to make up the deficiency.
Brutus is addressing the ability of Congress to be able to declare something [raising armies in this case] in the General Welfare, and accomplish it by means they are not directly empowered with. [Though on in this instance in particular, one could argue general welfare is not required for conscription and raising armies is sufficient]. But the relation Brutus is attempting to draw is how the power can be used for things OTHER than taxing if it is left unchecked.
- These powers taken in connection, amount [to] this: that the general government have unlimited authority and controul over all the wealth and all the force of the union.
In Brutus XI from January 31, 1788 Brutus continues his attacks on the unlimited power that Congress may possess, in relation to general welfare as previously discussed among other concerns.
- 1st. The constitution itself strongly countenances such a mode of construction. Most of the articles in this system, which convey powers of any considerable importance, are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning. The two most important powers committed to any government, those of raising money, and of raising and keeping up troops, have already been considered, and shewn to be unlimitted by any thing but the discretion of the legislature. The clause which vests the power to pass all laws which are proper and necessary, to carry the powers given into execution, it has been shewn, leaves the legislature at liberty, to do every thing, which in their judgment is best. It is said, I know, that this clause confers no power on the legislature, which they would not have had without it-though I believe this is not the fact, yet, admitting it to be, it implies that the constitution is not to receive an explanation strictly, according to its letter; but more power is implied than is expressed. And this clause, if it is to be considered, as explanatory of the extent of the powers given, rather than giving a new power, is to be understood as declaring, that in construing any of the articles conveying power, the spirit, intent and design of the clause, should be attended to, as well as the words in their common acceptation.
And Brutus XII of February 2, 1788
- This will certainly give the first clause in that article a construction which I confess I think the most natural and grammatical one, to authorise the Congress to do any thing which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases.
Even though the Anti-Federalist did not prevent any state from ratifying, they caused delays in the ratification in some states, and close votes in others such as New York 30-27 (where the Federalist Papers were addressed to). The Anti-Federalist did succeed in exposing potential abuses of power, including “general welfare” in Article I. The exposure and contention of these potential abuses and lack of state power to stop it, or being delegated any power to it, did weigh heavily in the adoption of the Bill of rights, which included an amendment to prevent this abuse of power in regards to general welfare, the 10th Amendment.
Part 1 : Part 2 : Part 3: Part 4 : Part 5 : Part 6 : Part 7 : Part 8 : Part 9
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