General Welfare (Part 9) State Ratification Debates (States 7-14)

States 7-14 you say, well you know there were only 13 Original States, right! As a matter of fact, you would be correct, but a 14th State also took part in the debates, though very small. Vermont became the 14th State on March 4, 1791, less than a year after Rhode Island ratified the Constitution and before the Bill of Rights was ratified later in 1791.
We see the same trend continue with many of the last Seven States as we saw with the first Six States, in regards to the amount of power being given to Congress, and because of this States proposing Amendments to the Constitution, some which are designed to specifically counter this perceived threat.

MARYLAND

The Convention for Maryland convened on Monday April 21, 1788. Though records are not very detailed of the debate in the convention, it is apparent that “general welfare” was in fact debated and a cause of concern for some. On Thursday April 24, 1788 is is noted in the convention records

• “On Thursday, the members who were opposed to the ratification of the Constitution, without such previous amendments could be obtained as they thought essentially necessary to secure the liberty and happiness of the people,…”

As a result of this, as the same with Massachusetts, Maryland proposed it own amendments to the Constitution, with the first being,

• 1. That Congress shall exercise no power but what is expressly delegated by this Constitution.

Not only was this amendment agreed to be the Convention, it was also followed by this in the record,

• By this amendment, the general powers given to Congress by the first and last paragraphs of the 8th sect. of art. 1, and the 2d paragraph of the 6th article, would be in a great measure restrained; those dangerous expressions, by which the bills of rights, and constitutions, of the several states may be repealed by the laws of Congress, in some degree moderated; and the exercise of constructive powers wholly prevented.

It was obvious that general welfare (in addition to a couple of other clauses) had the potential of giving the Congress more power than they desired. But the exact extend of their concern whether it was taxing only or also about making laws in regards to general welfare is not detailed. But nonetheless the concern of abuse was apparent, and when Maryland became the 7th State to Ratify the Constitution on April 26, 1788 (149-73) , they also presented a remedy to ensure it would not happen, the same concept that became the 10th Amendment of reserving all powers not explicitly given to Congress to the States.

SOUTH CAROLINA

On May 12, 1788 the Ratification Convention for South Carolina began. No debate is detailed about general welfare or Article I Section 8 Clause 1. The Convention became the 8th State to ratify the Constitution on May 23, 1788.

However there is also a record of debate in the South Carolina Legislature on the Constitution, and general welfare is mentioned briefly there.

• With regard to the general government imposing internal taxes upon us, he contended that it was absolutely necessary they should have such a power: requisitions had been in vain tried every year since the ratification of the old Confederation, and not a single state had paid the quota required of her. The general government could not abuse this power, and favor one state and oppress another, as each state was to be taxed only in proportion to its representation; and as to excises, when it is considered how many more excisable articles are manufactured to the northward than there are to the southward, and the ease and convenience of raising a revenue by indirect taxation, and the necessity there is to obtain money for the payment of our debts, for our common defence, and for the general welfare, he thought every man would see the propriety, and even the necessity, of this clause.

As we have seen with virtually all other debates in the States, the concern is almost universally addressing general welfare in only being associated to taxing. And for South Carolina, the concern was small, since they did not view it as a clause that could be abused, since it saw taxes being levied in proportion to the States equal to population.

NEW HAMPSHIRE

June 18, 1788 the Ratification Convention began (2nd session after first did not pass nor reject the Constitution earlier in 1788). No detailed records of the Convention are available from this short Convention, only a fragment of a part of the debate in regards to slavery remains in addition to the Declaration of Ratification. The Convention ratified and adjourned after three days, and New Hampshire became the 9th State to ratify the Constitution on June 21, 1788.

But as with other States before them, they also demanded and proposed amendments to the Constitution, including a now familiar one.

• First, That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.

The exact nature of what caused the New Hampshire delegation to demand this Amendment in addition to the others can only be drawn by speculation, and cannot be verified as a reason by records of debate.

Being the 9th State to Ratify, New Hampshire cause the Constitution to take effect for all ratifying States, which would be established as happening in March 4, 1789, by the now obsolete Congress Assembled (Congress Assembled on September 13, 1788 established March 4, 1789 as the date of the Constitution taking effect and seating the First Congress).

VIRGINIA

The Convention in Virginia Convened on June 2, 1788

Virginia has some of the longest and best documented debates of all the States Conventions, in which the Constitution was thoroughly debated. The debate of the First two sections of Article I (the Make up of the House of Representatives) lasted well over a week itself, though the debate did often spread into other aspects of the Constitution during this discussion. It is during this debate we see some of the first references to Article I Section 8. in this case in regards to a discussion of Habeas Corpus  (Proof of Body, the State proving it has the authority to hold a person in confinement) and Trial by jury.

Governor Randolph citing Article I Section 8:

• Go through these powers, examine every one, and tell me if the most exalted genius can prove that the liberty of the press is in danger. The trial by jury is supposed to be in danger also. It is secured in criminal cases, but supposed to be taken away in civil cases. It is not relinquished by the Constitution; it is only not provided for. Look at the interest of Congress to suppress it. Can it be in any manner advantageous for them to suppress it? In equitable cases, it ought not to prevail, nor with respect to admiralty causes; because there will be an undue leaning against those characters, of whose business courts of admiralty will have cognizance. I will rest myself secure under this reflection — that it is impossible for the most suspicious or malignant mind to show that it is the interest of Congress to infringe on this trial by jury.

Governor Randolph does not mention general welfare by name or content, but rather cites the entire Section and to what it is meant to do, or cannot do. He uses it as a point that Congress is limited to the powers expressed in Article I Section 8 and may not go beyond them, so it does not have the power here to infringe on Trial by Jury. The context of this and how it does apply to general welfare is that narrow meaning it is felt as meaning to very much limit what Congress can do, and if it is not listed as a power than congress does not have the authority to use it.

It was not until June 14th that Article I Section 8 was directly debated in the Convention, of which debates regarding the Militia were first. The debates regarding the Militia and the very passionate concern of some in the Virginia convention of Congress being able to use the Militia against the people, also drew upon the concern of general welfare. being used to justify it.

Patrick Henry June 16, 1788 during discussions of the Militia

• Mr. HENRY thought it necessary and proper that they should take a collective view of this whole section, and revert again to the first clause. He adverted to the clause which gives Congress the power of raising armies, and proceeded as follows: To me this appears a very alarming power, when unlimited. They are not only to raise, but to support, armies; and this support is to go to the utmost abilities of the United States. If Congress shall say that the general welfare requires it, they may keep armies continually on foot. There is no control on Congress in raising or stationing them. They may billet them on the people at pleasure. This unlimited authority is a most dangerous power: its principles are despotic. If it be unbounded, it must lead to despotism; for the power of a people in a free government is supposed to be paramount to the existing power.

After this statement, Patrick Henry then refers to the “Riot Acts” in Great Britain in which the King or Prince may raise armies for his purposes. His concern was that in the name of General Welfare, that Congress may call forth the Militia (since at this time the standing Army was very small and seen as a threat). This is an example of concern of the possible misuse not only of the militia, but the use of general welfare to justify it.

James Madison responded to this assertion from Patrick Henry

• The honorable gentleman says that it is a government of force. If he means military force, the clause under consideration proves the contrary. There never was a government without force. What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty or not, as he pleases, would be a new species of government, or rather no government at all. The ingenuity of the gentleman is remarkable in introducing the riot act of Great Britain. That act has no connection, or analogy, to any regulation of the militia; nor is there any thing in the Constitution to warrant the general government to make such an act.

James Madison did not directly specify general welfare, but it is apparent he was referring not only to general welfare but also the common defense portion of the clause. His final contention here was that the Constitution does not allow any where for armies to be raised against the people, and by extension common defense and general welfare could not be used to support it.

James Madison continued to speak and hit upon the subject of a Federal District, in which Congress would be the sole authority, in response to Patrick Henry concerns about the Federal District. Patrick Henry not to be without the last word, proposes

• if Congress were vested with supreme power of legislation, paramount to the constitution and laws of the states, the dangers he had described might happen; for that Congress would not be confined to the enumerated powers. This construction was warranted, in his opinion, by the addition of the word department, at the end of the clause, and that they could make any laws which they might think necessary to execute the powers of any department or officer of the government.

This is a suggestion by Patrick Henry to definitively limit the powers of Congress to those clearly stated in the Enumerated Powers section (Article I Section 8), which includes general welfare that he already spoke against. He fear in this instance was that those limits would not exist in this district.

George Mason also joined in the debate offering the following example in his mind of how many powers could be abused.

• gentlemen say there is no new power given by this clause. Is there any thing in this Constitution which secures to the states the powers which are said to be retained? Will powers remain to the states which are not expressly guarded and reserved? I will suppose a case. Gentlemen may call it an impossible case, and suppose that Congress will act with wisdom and integrity. Among the enumerated powers, Congress are to lay and collect taxes, duties, imposts, and excises, and to pay the debts, and to provide for the general welfare and common defence; and by that clause (so often called the sweeping clause) they are to make all laws necessary to execute those laws. Now, suppose oppressions should arise under this government, and any writer should dare to stand forth, and expose to the community at large the abuses of those powers; could not Congress, under the idea of providing for the general welfare, and under their own construction, say that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not, in order to provide against this, lay a dangerous restriction On the press? Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it? Might they not thus destroy the trial by jury? Would they not extend their implication? It appears to me that they may and will. And shall the support of our rights depend on the bounty of men whose interest it may be to oppress us? That Congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise, the power of providing for the general welfare may be perverted to its destruction.

George Mason concern was not only of general welfare, but the a series of abuse or misuse of powers by the government, but used under the guise of “general welfare”, since nothing was in place to strictly limit what the scope of this clause may be. This is a similar argument that has been seen in other states as well, mostly in regards to taxing, but sometimes as a more broad power that can be abused. For some it was a fear of the States not being able to raise revenue through taxes, and others like George Mason it could be more maliciously used to infringe on other rights or States prerogatives.

An example of the very wide view of this clause in some of the States Conventions is what followed after George Mason’s discussion above. George Nichols in replying to George Mason stated the following.

• The opposers of the clause, which gave the power of providing for the general welfare, supposed its dangers to result from its connection with, and extension of, the powers granted in the other clauses. He endeavored to show the committee that it only empowered Congress to make such laws as would be necessary to enable them to pay the public debts and provide for the common defence; that this general welfare was united, not to the general power of legislation, but to the particular power of laying and collecting taxes, imposts, and excises, for the purpose of paying the debts and providing for the common defence, — that is, that they could raise as much money as would pay the debts and provide for the common defence, in consequence of this power. The clause which was affectedly called the sweeping clause contained no new grant of power. To illustrate this position, he observed that, if it had been added at the end of every one of the enumerated powers, instead of being inserted at the end of all, it would be obvious to any one that it was no augmentation of power. If, for instance, at the end of the clause granting power to lay and collect taxes, it had been added that they should have power to make necessary and proper laws to lay and collect taxes, who could suspect it to be an addition of power? As it would grant no new power if inserted at the end of each clause, it could not when subjoined to the whole.

Nichols continued to describe the clause in abuse of power.

• If they exceed these powers, the judiciary will declare it void, or else the people will have a right to declare it void….It was so constructed that it would be dangerous to invest it with such. But why were the articles of the bill of rights read? Let him show us that those rights are given up by the Constitution. Let him prove them to be violated. He tells us that the most worthy characters of the country differ as to the necessity of a bill of rights. It is a simple and plain proposition. It is agreed upon by all that the people have all power. If they part with any of it, is it necessary to declare that they retain the rest? Liken it to any similar case.

From here the debate of general welfare among other powers to Congress centered more around ensuring the Federal Government was restrained and the States rights and powers were reserved while discussing each power.

Edmund Randoplh in response to Patrick Henry made the following statement.

• observed that the honorable gentleman's proposition comes in a truly questionable shape, and is still more extra? ordinary and unaccountable for another consideration — that, although we went article by article through the Constitution, and although we did not expect a general review of the subject, (as a most comprehensive view had been taken of it before it was regularly debated,) yet we are carried back to the clause giving that dreadful power, for the general welfare, Pardon me, if I remind you of the true state of that business. I appeal to the candor of the honorable gentleman, and if he thinks it an improper appeal, I ask the gentlemen here, whether there be a general, indefinite power of providing for the general welfare? The power is, "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare," so that they can only raise money by these means, in order to provide for the general welfare. No man who reads it can say it is general, as the honorable gentleman represents it. You must violate every rule of construction and common sense, if you sever it from the power of raising money, and annex it to any thing else, in order to make it that formidable power which it is represented to be.

The debates in Virginia for the duration of the convention revolved around these two beliefs, one that it may infringe on the States or be used to abuse another power or in a manner it was not designed, and the other that it only applied to the collection of taxes. At times the debate became very heated with shouting.

But in the end Virginia became the 10th State to ratify the Constitution on June 25, 1788, and like several States before it presented its own proposed amendments to the Constitution, with the first being,

• 1st. That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.

As was with States prior to Virginia, the first proposed amendment was made to appease those in concern of the abuse of power by Congress, with much that focus of it being on general welfare.

NEW YORK

The Ratification Convention in New York started on a couple of weeks after Virginia on June 17, 1788 but lasted much longer. Along with the debate in the Convention, a contentious debate took place in the newspapers and periodicals of the day, with the Federalist Papers being the most well known and perhaps most influential.

Like Virginia the New York convention was not immune to fiery debate about general welfare as some others states had been.

Other than a reference to general welfare in the preamble, the first debate about general welfare occurred on June 26, 1788 when Mr. Williams began with the following.

• In the preamble, the intent of the Constitution, among other things, is declared to be, "to provide for the common defence, and promote the general welfare;" and in the clause under consideration, the power is in express words given to Congress "to provide for the common defence and general welfare." And in the last paragraph of the same section, there is an express authority to make all laws which shall be necessary and proper for the carrying into execution this power. It is therefore evident that the legislature, under this Constitution, may pass any law which they may think proper. It is true, the 9th section restrains their power with respect to certain objects. But these restrictions arc very limited, some of them improper, some unimportant, and others not easily understood. Sir, Congress have authority to lay and collect taxes, duties, imposts, and excises, and to pass all laws which shall be necessary and proper for carrying this power into execution; and what limitation, if any, is set to the exercise of this power by the Constitution?

A much familiar concern appears in the New york Convention that has already been seen in that of several others to this point. That general welfare may be used as a mode to infringe on States or the People rights by granting the Congress nearly unlimited power, or be used to justify other encroachments or violations of the other enumerated powers. Williams is concerned that no true limit is in place for general welfare, and when used with necessary and proper posses no limit, other than the few prohibitions of Article I Section 9. Williams specifically follows this continuing his argument about giving the Congress the ability to tax any thing it wishes to, without limit for the general welfare. This is also not an argument unique to New York at this point.

The next day after Williams felt his objections were dismissed by some he readdressed general welfare again.

• Sir, I yesterday expressed my fears that this clause would tend to annihilate the state governments. I also observed, that the powers granted by it were indefinite, since the Congress are authorized to provide for the common defence and general welfare, and to pass all laws necessary for the attainment of those important objects. The legislature is the highest power in a government. Whatever they judge necessary for the proper administration of the powers lodged in them, they may execute without any check or impediment. Now, if the Congress should judge it a proper provision, for the common defence and general welfare, that the state governments should be essentially destroyed, what, in the name of common sense, will prevent them? Are they not constitutionally authorized to pass such laws? Are not the terms, common defence and general welfare, indefinite, undefinable terms? What checks have the state governments against such encroachments?

Williams is again expressing his concern of the potential use of the power, and that no checks on it are provided for. He continues to argue in regard of taxes and the States ability to tax something that Congress has already taxed, where is the power of the States on this issue. His contention is the States must protect themselves, from the Congress

• And to this most undesirable point must the states recur, in order to secure their rights.

As with Virginia and other states upon becoming the 11th state to ratify the Constitution on July 26, 1788, New York also submitted proposed amendments to the Constitution from their convention as well. The third proposed amendment addresses the issues of potential abuse, misuse or infringing of power, that among them involve general welfare is as follows.

• That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and Right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remain to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those clauses in the said Constitution, which declare, that the Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater caution.

Virginia was the last State to ratify the Constitution before he First Congress first assembled in New York City on March 4, 1789.

NORTH CAROLINA

North Carolina first assembled a Ratification Convention on July 22, 1788, but after less than 2 weeks, the Convention Broke, refusing to ratify the Constitution without Amendments. Objection to various parts of the Constitution arose almost immediately upon the beginning of debate regarding the protection and rights of the State and the People. Since no single provision of the Constitution could individually be rejected, but either accepted or rejected in entirety, it would only take one section to draw enough displeasure to cause the whole to be rejected. Many things in the Constitution were objected to, including the powers of Article I Section 8 Clause 1, the Constitution was not rejected solely on this issue, but was certainly a part of its rejection.

On July 26, 1788 Article I Section 8 came up for debate, and by this time in the Convention it has become more apparent that rejection was not only a possibility, but was becoming more likely, Article I Section did not help out those who desired its ratification. Mr. Spencer opened debate on this clause with stating,

• I conceive this power to be too extensive, as it embraces all possible powers of taxation, and gives up to Congress every possible article of taxation that can ever happen. By means of this, there will be no way for the states of receiving or collecting taxes at all, but what may interfere with the collections of Congress.

As we have seen in other States North Carolina is also concerned about the apparent limitless power that Congress has on taxation at that it suffocate the States ability to collect taxes as well. Mr. Sherman would continue on to support the notion that the Federal Government did need to have the means to raise revenue, and that it did not be done on the Individual and not the State to better ensure receiving them without a fight (Political or by Arms), but contended that defined means of raising revenue through taxing should be made such as duties and excises, to, 1.) not prevent the States from also raising money, and 2.) not suffocate the people with taxes in all aspects of life.

The debate in the North Carolina Convention dealt mainly with taxes and taxing power as a whole, and general welfare was never broke out by name in the debates. The concern in the Convention was rather the entire clause as being too powerful for Congress and too powerless for the States. It is not clear to say what scope the term general welfare had it the animosity towards the clause, though it certainly had to have some since the entire clause was objected to.

As with other States the North Carolina Convention did propose a Declaration of Rights and several Amendments to the Constitution. North Carolina was very concerned about the power given to the Federal Government, and the lack of the protection of rights for both the People and the States. The first Amendment proposed by North Carolina is familiar to other states, for the similar reason, to ensure the Federal Government is limited in its power and does not infringe on the powers it is not being granted.

• 1. That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.

But unlike other States North Carolina refused to ratify the Constitution during its first Convention, and the Convention broke on August 2, 1788. The state refused to reconsider the Constitution until certain amendments were included.

After the Bill of Rights was passed by the Congress on September 17, 1789, North Carolina seated a Second Convention on November 16, 1789 and became the 12th State to ratify the Constitution on November 21, 1789.

RHODE ISLAND

May 26, 1790 the Rhode Island Ratification Convention began. Very little in documentation remains of the this Convention, but Rhode Island as several States before it had, proposed a Declaration of Rights and Amendments to the Constitution. Among the Amendments is the same type we have seen from every other state to have proposed amendments to the Constitution.

• I. The United States shall guaranty to each state its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Constitution expressly delegated to the United States.

The reason and purpose of this proposed Amendment can only be speculated, since by the time Rhode Island became the 13th State to ratify the Constitution on May 29, 1790, the Bill of Rights had already been passed by Congress and presented to the States for Ratification, and 8 had already ratified the Bill of Rights.

VERMONT

Vermont was not yet a state or even a colony in 1787 or when the Constitution went into effect in 1789. Yet on January 9, 1791 the Ratification Convention for Vermont convened. In order for Vermont to even get to this stage, a dispute of its sovereignty with New York had to be resolved, since New York claimed Vermont was part of its territory. On October 17, 1790 that issue was resolved for Vermont, and Vermont became in fact a fully sovereign Nation.

The debate for Vermont was not on the particulars of the Constitution itself, but whether joining the Union or maintaining its Independent status was in its best interest. In the end after a days worth of debate Vermont ratified the Constitution on January 10, 1791, the 14th “State” to do so. But even though it had ratified the Constitution, Vermont was not part of the Convention like Rhode Island and was not specifically listed in the Constitution where Rhode Island was,  it did not join the Union until March 4, 1791 after Congress admitted it to the Union as the 14th State, and the first State admitted under the Authority of the Constitution.

Vermont Subsequently became the 10th State to ratify the Bill of Rights on November 3, 1791, before they went into effect when Virginia became the 11th State to do so on December 17, 1791. Vermont’s admission into the Union moved the three-quarters requirement for Amendment Ratification from 10 to 11, though it probably did not change the final enactment date, since Virginia would still have been the 10th State causing it to still go into effect.

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