Perhaps no single Clause is more contentious than the General Welfare clause, found in Article I Section 8 Clause 1 of the Constitution,

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

In particular the part of “to pay the Debts and provide for the common Defence and general Welfare” being the one that is most often cited as granting the Federal Government a broad and sweeping amount of power. Many things Congress does, or wishes to do are justified as being for the “General Welfare” of the United States, that many may contend it does not permit.

We also see the term in the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Two completely opposite points of view on this Article leads to either an expanded government on one side, or it leads to the conclusion of an out of control government on the other. Is General Welfare a general statement granting broad power, or is it something other than the broad powerful statement?

So does “General Welfare” infer the entire general welfare for the United States, or is it a general term itself with no specific meaning of power?

The first thing to do is figure out is where did this term come from? Do we see this term used elsewhere, if so how is it used and implied.

About this Article

This article was originally only going to be a two-four part series exploring general welfare. This is not the way it ended up, by the end there were 11 parts to this article, and this version is all 11 of those parts in one. Some editing has been done, each Part can be viewed itself in the following links. This version of the article follows the same format as the individual parts, and headers will indicate were most start in this article (State ratification debates are all one section). All reference can be accessed through links, are cited at the bottom, or are included in their entirety to encourage the reader to see these sources for them selves.

Part 1: Other uses of the term
Part 2: Debates in Convention, the First drafts
Part 3: Debates in Convention, Committee of Detail
Part 4: Final Drafts and Debates of the Convention
Part 5: Final thoughts on the Constitution Convention
Part 6: The Anti-Federalist concern, limitless power
Part 7: The Federalist presentation
Part 8: The States Debates during Ratification (States 1-6)
Part 9: State Ratification Debates (States 7-14)
Part 10: Post Ratification Writings
Part 11: Final Thoughts

Other Uses of General Welfare

Perhaps the first place to look is the immediate predecessor to the Constitution, the Articles of Confederation. Two times the term “General Welfare” appears in the Articles.

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.
All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

But the entire point of the new Constitution was to replace the Articles of Confederation, because the Articles did not have the strength needed for a National Government. The first one is not exactly the same as the preamble, but is in similar context. Found in Article III of the Articles, this is the portion describing the purpose of the Articles of Confederation, just as the preamble does in the Constitution, and as such is not part of a power clause, thus clearly does not infer power, just as the preamble.

However the Second instance of General Welfare in the Articles of Confederation, found in Article VIII, is a power delegating part. The power in concern is the funding of war, the common defense, or general welfare, as allowed by the Congress Assembled from a common treasury, but paid by the States. Not only is General Welfare mentioned in both, so is Common Defense. If this term means the same thing in both document [written only 10 years apart], why did the Congress lack the power to suppress Shays Rebellion, or other acts by states that were not in the interest of the Union?

Another similarity of the term between the Articles of Confederation and the Constitution is what follows both, after the “power” clause it is used in. They are both followed by an enumeration of powers to Congress, specific powers granted. The Articles of Confederation is followed by 7 well enumerated powers for, and 1 prohibitive clause, while the Constitution is followed by 17 enumerated clause, and section 10 of prohibitive acts.

We also General Welfare [or some close form of it] used in State Constitutions, all ratified within the 12 years or prior the Convention of 1787.

Pennsylvania Constitution (September 28,1776) Preamble

We, the representatives of the freemen of Pennsylvania, in general convention met, for the express purpose of framing such a government, confessing the goodness of the great Governor of the universe (who alone knows to what degree of earthly happiness mankind may attain, by perfecting the arts of government) in permitting the people of this State, by common consent, and without violence, deliberately to form for themselves such just rules as they shall think best, for governing their future society, and being fully convinced, that it is our indispensable duty to establish such original principles of government, as will best promote the general happiness of the people of this State, and their posterity, and provide for future improvements, without partiality for, or prejudice against any particular class, sect, or denomination of men whatever, do, by virtue of the authority vested in use by our constituents, ordain, declare, and establish, the following Declaration of Rights and Frame of Government, to be the CONSTITUTION of this commonwealth, and to remain in force therein for ever, unaltered, except in such articles as shall hereafter on experience be found to require improvement, and which shall by the same authority of the people, fairly delegated as this frame of government directs, be amended or improved for the more effectual obtaining and securing the great end and design of all government, herein before mentioned.

Four Additional States have some other type of reference similar to “General Welfare”.

Maryland contains in its Bill of Rights in Article I (November 11, 1776)

That all government of right Originates from the people, is founded in compact only, and instituted solely for the good of the whole.

New York (April 20, 1777), and North Carolina (December 18, 1776) contain a similar use in their respective preambles.

New York, “…institute and establish such a government as they shall deem best calculated to secure the rights and liberties of the good of the people of this state, most conducive of the happiness and safety of their constituents in particular, and America in General”.
North Carolina, “…for the express purpose and framing a Constitution, under the authority of the people, most conducive to their happiness and prosperity, do declare, that a government of this State shall be established…”.

Of the fours states previously mentioned, three of them [PA, NC, NY] contained a term of similar context in its preamble, a non power and purpose explaining section of the Constitution. Maryland contained the term in its Bill of rights, an empowering function for the people, and limiting act on a government. In Maryland it is used a descriptive term of the purpose of government, but gives no power.

Only New Hampshire contained a similar phrase in a power enacting section of its constitution found in Part II Article V [Power to Make Laws, Elect Officers, Define Their Powers and Duties, Impose Fines and Assess Taxes; Prohibited from Authorizing Towns to Aid Certain Corporations.]

New Hampshire [P2A5] And farther, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, and of the subjects of the same, for the necessary support and defense of the government thereof, and to name and settle biennially, or provide by fixed laws for the naming and settling

Of all the instances we see “General Welfare” or some similar term in a charter of Government prior to the Constitution, only two of them occurred in a section that delegated a function of power. In regard to one in the Articles of Confederation, it is apparent it did not give the Congress Assembled [the proper term of Congress under the Articles] the reign of power as general welfare is contended to give today. The Articles proved to be ineffective in governance of a Nation due to the lack of power it had. In conjunction with general welfare in the Articles, we also see the similar phrase “Common Defense” preceding it as we do in the current Constitution, yet with both of these powers, the Articles lacked the ability to quell a rebellion in Massachusetts. If the term was to convey the power it is argued it does today, the Congress Assembled would have had the power to not only deal with this rebellion as it concerned the General Welfare of the whole nation, it would also have provided for the common defense from armed insurrection, yet IT DID NOT. general Welfare in the Articles conveyed no power to the Congress Assembled, because it was not meant to, it was used only as a general term describing the following enumerated powers that were granted to the Congress Assembled, none of which included the ability to confront rebellion or insurrection. It can only reason, that this term was in fact not a power delegating clause in the Articles of Confederation, and can only be nothing more than a descriptive term of the general purpose, not responsibility, of the government.

But with New Hampshire however, the term was specifically conveyed as a empowerment clause to the Legislature, “Power to Make Laws…as they may judge for the benefit and welfare of this state”. But this was also preceded by a limiting clause,”so as the same be not repugnant or contrary to this constitution”, immediately limiting the scope of how far the laws the legislature may pass can in fact go. Of all the instances we see with general welfare this is the only one that directly conveys it as a power, no other instance does. In its use in the New Hampshire Constitution it does not leave doubt as to it doing this, but also limits to what point it may be used.

It would be very reasonable to conclude, that the term itself was not used as a conveyance of power, if it was the term was specifically and unequivocally stated as such, but rather it was used as only a descriptive term on the purpose of government, not a power itself of government.

Debates in Convention, the First Drafts

How did “General Welfare” end up in the Constitution? As noted previously, the term was used in the Articles of Confederation, and a similar term was used in the Constitutions of several states. But how did it end up in the Constitution, and what was it thought of during the debates of Ratification, and not only the term general welfare, but the clause as a whole? What is perhaps the most striking aspect of general welfare during the Constitution Convention of 1787, is how little it was actually discussed, this is even more amplified considering the considerable debate among many of the other enumerated powers found in Article I Section 8.

The term General Welfare came up very early in the Convention, the first day after the rules of the Convention had been agreed upon, we see its first use. On May 29, 1787 Edmund Randolph, he Governor of Virginia rose and presented a proposed outline to a new Constitution, known commonly today as the Virginia Plan. In the very first resolution, Randolph he state the purpose of his proposal.

1. Resolved that the Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, "common defence, security of liberty and general welfare” ¹

In the Virginia plan, this use of General Welfare is in direct reference to its use in the Articles of Confederation, which was a term to describe the general purpose of the Articles, and carried no direct power to the Congress Assembled. Randolph in his first resolution also uses it for this purpose, to describe the general intention or purpose of the Virginia plan, as it relates to the general purpose of the Articles of Confederation, to correct and amend the articles to secure the common defense, security of liberty and general welfare, not as a resolution of power.

On May 30th, the Convention broke to committee to consider Randolph’s resolutions, with his first resolution postponed indefinitely, in order to consider the following.

That a union of the states merely federal will not accomplish the objects proposed by the Articles of Confederation—namely, common defence, security of liberty, and general welfare. ¹

This resolution was in addition to two others agreed to regarding the general concepts of forbidding the States from making treaties, and making a government consisting of three branches, Legislature, Executive, and Judiciary. The use of the term here has no differing meaning than what Randolph had proposed the prior day in the Virginia Plan.

June 13th is the next time we encounter either general welfare itself, a draft of what would be the final version of Article I Section 8 Clause 1 or comparable scope of power, on a report from committee concerning a the basic structure of a new government [prelude to the New Jersey Plan].

6. Resolved, That the national legislature ought to be empowered to enjoy the legislative rights 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 opinion of the national legislature, the Articles of Union or any treaties subsisting under the authority of the Union. ¹

On June 15th the new Jersey Plan was submitted by William Patterson [New Jersey], with the 3rd Resolution addressing the ability to tax, in proportion to the population of all free persons, and indentured servants [excluding Indians not taxed]. But no mention of the purpose of the power to tax is described as we would come to see it in the Constitution.

The debates of the New Jersey plan carry into June 16th, when James Wilson [Pennsylvania] brought up 13 points in regards to the New Jersey Plan. His 6th point was:

6. The national legislature is to make laws in all cases to which the separate states are incompetent, &c.; in place of this, Congress are to have additional power in a few cases only. ¹

James Wilson later on, while discussing the necessity to divide the Legislature into two house, made the following point in regards to Congress in a single Legislature:

If the Legislative Authority be not restrained there can be neither liberty nor stability. ¹

Even though James Wilson [who did sign the Constitution] was discussing the need of having two house in the Legislature vice one as proposed in the New Jersey Plan, the sentiment carries is what is significant, is the desire for restraint on the Legislature, this was essential to ensure Liberty and to maintain a stable political system.

Though this resolution does directly reflect either general welfare or its clause, it does go toward showing the desire of the convention to base the power structure off of the Articles of Confederation, and expand them as needed.

It was not until July 17th that General Welfare was again discussed [in the records of the notes whom attended and the Federal Journal].

Mr. [Roger] SHERMAN observed, that it would be difficult to draw the line between the powers of the general legislature and those to be left with the states; that he did not like the definition contained in the resolution; and proposed, in its place, to the words “individual legislation,” inclusive, to insert “to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the government of the individual states in any matters of internal police which respect the government of such states only, and wherein the general welfare of the United States is not concerned.” ¹

Roger Sherman [Connecticut] was discussing the following clause from the day before.

“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,” ¹

At this point in the Convention the Delegates were debating the division of power from the National [Federal] and State Governments. Fresh on the minds of all was the inability of a state to quell a rebellion [Shay’s rebellion] in addition to the inability of the Congress Assembled to stop it because it lacked the power, in addition to numerous other short comings associated with the Articles of Confederation. This clause immediately drew the ire of several Delegates including Pierce Butler [South Carolina] and Nathaniel Gorham [Massachusetts]. They both contended on an explanation of particularly “incompetent”, and, “The vagueness of the terms rendered it impossible for any precise judgment to be formed”. John Rutledge [South Carolina] was also opposed, and moved for it be struck, with the votes being even, this motion failed.

Back to Roger Sherman’s motion, after being opposed by Gouverneur Morris [Pennsylvania] that some items the States did need policing, such as paper money, Roger Sherman defended the proposal by.

“in explanation of his idea, read an enumeration of powers, including the power of levying taxes on trade, but not the power of direct taxation.”. [italics noted in Madison’s Notes on the convention] ¹

In the end Roger Sherman’s proposal failed by a substantial 8-2 vote. But what is to note here is, nowhere in the discussion was General Welfare moved to be a power of General Power, but was rather simply used as a passive term of description of the purpose of his proposal. The debate centered around how to effectively divide National from State powers, and the overall premise was the National government could not interfere with the actions of a State, unless it was against the interest of the “general welfare”, of the United states as a whole. as he later explained was limited to the enumerated powers and levying of taxes on trade. In the whole context, the idea was not to enable the National government to do things it felt were in the National welfare, but to prevent only those that were actions by states that were against the whole National welfare. As it was implied in this instance, it was not making reference to it is a general enabling power to a governing body.

The fact that the “incompetent’ drew a significant amount of attention from several delegates due to its potential of allowing the government to expand its powers to those it was not intended, while the term “general welfare” was drew no objections at all, goes to only supports the previous notion, that this term is used as a general meaning phrase to describe purpose and not a power enabling general clause. The whole debate around this single use is substantial in that it also was in reference of taxing power, the power that would eventual be described in the very same clause general welfare ended up in.

On July 26th resolutions were agreed to on the basic structure of the new Constitution, included in these is Resolution 6:

6. Resolved, That the national legislature 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 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.

After the whole proposal of 23 resolutions were submitted, they were referred to committee along with Charles Pinckney’s [South Carolina] Constitution proposal from May 29th, and William Patterson’s New Jersey plan from June 15th. As already mentioned William Patterson’s New Jersey plan did not contain a general welfare or power clause, though did contain the contended “incompetence'” portion, that is still reflected in the 6th resolution on July 26th. Charles Pinckney’s draft Constitution from May 29th, also did not contain a general welfare or power clause, but did contain the context of the rest of what is Article I Section Clause 1, in Article VI of his proposal.

Art VI – The Legislature of the United states shall have the power to lay and collect taxes, imposts, and excises. ²

Similar to the Articles of Confederation, and the same as we see in the final Constitution, Charles Pinckney [who also did sign the Constitution] follows these up with enumerated powers clauses, 20 to be exact, as well as another set of prohibitive clauses, all very near what we see in the present Constitution, including direct taxes proportioned to the number of free inhabitants, before being allowed to be done in a manner as Congress directs [lest Capitation taxes which are to remain proportional]. But nowhere in Pinckney’s proposal is any sort of general welfare or general power to Congress mentioned or implied.

Through July 26th, General Welfare or any form of it, has been used very sparingly and sporadically, and thus far used mainly in reference to the use of it in the Articles of Confederation. But debates have already taken place about other aspects of Congressional power and is it being restrained enough, but not one of these was on the term general welfare. Up to this point in the Convention it does not seem to appear that general welfare is anything more than the term that was used in the Articles of Confederation which carried no weight of power at all, because why would they debate ‘incompetence’ as being too much power to Congress and draw the ire of at least half the delegates based on the split vote for its removal, but not even mention once an opposition “general welfare” also as being a power that may give Congress too much power?

Debates in Convention, Committee of Detail

As already discussed 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 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 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, and without 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; (sic)

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.

Final Drafts and Debates of the Convention

After the Committee of Detail presented its final draft of a Constitution to the Convention on August 6th, 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 ³]. 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 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, 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 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;”

This is a combination of what would become Article I Section Clause 1 and Article VI. But of note, it is agreed to on August 22 does not contain general welfare.

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, 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 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.

Final thoughts on the Constitution Convention

I think it is something of note that very little was debated in the Convention on the term General Welfare throughout the entire Convention of 1787. This point I believe is amplified when one looks at how much other aspects of power debated feverishly. When one looks at how it may be contended to how much power General Welfare carries to how little debate revolved around it, when related to other comparatively smaller powers dealing with power at the Federal Level this must speak to what the true intention of what it was felt it meant.

But maybe the most telling non-debate of “General Welfare” was the total lack of it in the Slavery issue. As contended by some, general welfare was meant to give the Congress the power to make laws for the overall general welfare of the people or the Union. By using this clause by this meaning, would this not then give the power to Congress to outlaw Slavery or Indentured Service outright for the general welfare of those bound by it? But this possibility was never addressed once in the Convention by the accounts of the notes we have available to us today.

The issue of Slavery was a very tense issue throughout many parts of the Convention, and it can be seen addressed or referenced in differing aspects in several parts of the Constitution, with each of these clauses being thoroughly debated.

The three-fifths clause dealing with apportionment of Representatives to the States was debated off and on for over two weeks from the end of June until an agreement was finally passed on how non-freeman [Slaves] would be counted for both taxation and Representation. Without this compromise, it is doubtful the Constitution would have ever been ratified by the southern States, or even reach the Nine required to enact it at all. The southern States believed that they were the region of wealth, largely based off of their agricultural economy, but they also new they were outnumbered by a large amount in population by the Northern States [when counting only free men who could vote]. As pointed out on June 28th, “Virginia, Massachusetts, and Pennsylvania, have forty two ninetieths of the votes, they can do as they please, without a miraculous union of the other ten”.

The main concern here was the Southern States being outnumbered in the House of Representatives by only a few of the Northern States and imposing its will on the South. But even with this concern, the parallel of the power to general welfare never once was made in the potential abolition of the Slaves, this concern dealt with the power of the North in General in Congress. On July 14th, James Madison observed, “The perpetuity it would give to the preponderance of the northern against the southern scale was a serious consideration. It seemed now to be pretty well understood[misspelling is from original text], that the real difference of interest lay, not between the large and small, but between the northern and southern, states. The institution of slavery, and its consequences, formed the line of discrimination. There were five states on the southern, eight on the northern side of this line. Should a proportional representation take place, it was true, the northern would still outnumber the other; but not in the same degree, at this time; and every day would tend towards an equilibrium.”

Through the entire debate from the beginning of the Convention to the end general welfare was never attributed to the issue of Slavery. Their were proposals or suggestions to end the practice with the Constitution, or to enable it to be abolished Slavery with it, but also none of these ideas or suggestions were ever tied to general welfare as well. The issue of allowing slavery in the South for some was of enough importance, that a clause was added to Article I Section 9 prohibiting Congress from prohibiting the importation of Slaves, and in Article VII prohibiting an Amendment that would revoke it, or the apportionment of taxes using the Three-fifths measure. In the end of this issue after the 20 year provision had long passed, it took not an act of Congress to end slavery, but by the 13th Amendment to the Constitution. With the amount of concern that was expressed on the power balance to the North, the fact that general welfare was never tied to this power balance, perhaps leads only to the support of it being a general statement and not invoking power at all.

Slavery is not the only topic which was discussed in length dealing with potential Federal Power and the complete lack of any correlation to potential use of General Welfare to as a potential to expand or enlarge powers. For four straight days in Convention, the Convention debated what would become Article I Section 8 and its 18 clauses, but never once was general welfare debated. This section or several of its clauses were sent back to Committee numerous times for refinement, but no record of debate on general welfare is recorded. The Convention debated Post Offices and had to introduce a provision of specifically Postal Roads to ensure that power was present for Congress. On the debate of emitting Bills on the credit of the United States, Nathaniel Gorham [Massachusetts] was mentioned in regards to the motion to strike this provision, “without inserting any prohibition, If the words stand, they may suggest and lead to the measure [emitting Bills of Credit]”. This was responded to by James Madison [Virginia], “Congress, he thought, would have not have the power, unless it were expressed”. The debate of credit and debt was visited several times, and efforts were made to ensure the proper power was given to the Congress, but not excessive powers. If General Welfare was meant to allow Congress to do what it felt was in the General Welfare to begin with, why would the delegates then have a debate on its limits or express the specific power at all? Certainly if anything, General Welfare being in a taxing and debt clause should surely include paying of debts and emitting Credit, but no, rather the Delegates sought to specifically mention these powers and described for what purposes they may be used in the enumerated clauses. This can only be that they did not view general welfare to be a power given to Congress, but rather a reason to why they gave Congress certain powers in the first place.

When all things are considered on the Convention, almost every aspect in the Constitution and every aspect pertaining to power given to the Government was debated, and in most cases numerous times, except for the clause of “General Welfare and Common Defense”. Numerous sides to arguments existed in most provisions, some wanting stronger National Powers, others weaker, some looking out for states rights, other for the Individual. With all of these interest being represented to some degree, with almost every aspect of a power given to the Federal Government or power surrendered by the States or People being debated numerous times, to have general welfare inserted late in the Convention, and to never have even one debate on what General Welfare power is, is remarkable, unless it was viewed by all the Delegates in the Convention not as a power, but simply a description of something else, perhaps the following enumerated powers in Article I Section 8, just as general welfare did in the Articles of Confederation.

The Anti-Federalist concern, limitless power

Just as the Federalist Papers were written to encourage the ratification of the Constitution [New York in particular], the Anti-Federalist Papers were written either to oppose ratification, or delay ratification until certain and specific issues were addressed. Unlike the more commonly known Federalist Papers which were written by three individuals (James Madison, Alexander Hamilton and John Jay) and to principally the People of New York, the Anti-Federalist were written by a much larger group of individuals, including some who attended the Convention of 1787 but refused to sign the final document [the exact number is unknown due to the number of pseudonyms used] and they were written to the people of numerous states. The Anti-Federalist did not prevent even one State from eventually ratifying the Constitution, even Rhode Island who did not attend the Convention of 1787 ratified the Constitution on May 29, 1790. But the Anti-Federalist were perhaps the strongest force in causing a Bill of Rights to be required in exchange for their ratification, to secure individual and States Rights.

Among some of the concerns addressed by the Anti-Federalist [there were many concerns among them] Article I Section 8 Clause 1 and 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 concern the Federal Republican is that this clause leaves too much room for the Congress to be abusive or oppressive in matters that are the States or should be the States alone or at the very least incur an inconvenience to the State or States. He does go on to point out the congress does need to have the power for the “general welfare” of the whole United States.

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”.

Centinel V (Author Unknown) on December 4, 1787 was the next to address concern about 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.

Brutus V (Robert Yates, NY Convention delegate) on December 13, 1787 addresses not only general welfare, but Congressional power as a whole in length. His main concern is that general welfare coupled with Article I Section 8 Clause 18 in regards to “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”, had given Congress a limitless amount of power that would require a volume and not a single newspaper article to explain. Brutus summarizes his fear as follows,

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;
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 alleged 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.

Among the concerns from the Minority Dissent was that even though Article I Section 9 did place prohibitions on what Congress could not do, it did not leave the States any affirmed power in what was theirs. By not having this defined limit on what Congress could do, and expressing what was solely the jurisdiction of the States, it was feared that general welfare with necessary and proper would render the States powerless against the Federal Government. In conclusion those who signed the dissent of the Minority report, they agreed with the principles of the Constitution, but would not agree to it on the whole until certain items were addressed, such as reserved powers to the people and states.

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 an 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.

In the end for Brutus, he ended up being one of the driving forces that ended up in the requirement from certain States (MA, SC, NY, NH, VA), that their vote to ratify was only guaranteed by a promise of a Bill of Rights. Each State submitted its own proposed amendment, some of which were designed to limit these types of potential unlimited powers of Congress, to prevent them from being distorted to deprive rights, and empower the States by reserving powers to them or the people. Each one submitted an amendment of the type that reserved all powers to the people and States not specifically given to the Congress or Federal Government on the whole, as a means to alleviate this concern.This concept eventually led to what became the Ninth and tenth Amendments.

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.

The Federalist presentation

Following the Constitution Convention of 1787, the next order of business was to present the proposed Constitution to the States for ratification, and more importantly, convince a skeptical public that is should be ratified. From this two main groups formed, one called the Federalist with the other being the Anti-Federalist. Each wrote numerous Articles either for or against the Ratification of the Constitution. For the Federalist, the Federalist Papers are by far the most commonly known writings attributed to the Federalist, though other Pro-Federalist writings did also get published.

The Federalist Papers were written by three individuals, James Madison [Convention Delegate from Virginia, future Representative from Virginia and 4th President], Alexander Hamilton [Convention Delegate from New York, future Secretary of the Treasury under Washington] and John Jay [Negotiator in the Treaty of Paris ending the American Revolution, future First Chief Justice of the United States and Governor of New York]. The Federalist Papers in many aspects were quite thorough in their arguments for Ratification, addressing most provisions in the proposed Constitution and presenting their intended actions and presenting a meaning of the context to the people mainly of New York, but much of the Country in the end. During the nearly year long run of these Papers, many of the Papers were written solely to explain the proposed Constitution, while others also addressed concerns brought up by the Anti-federalist. Of the 85 Federalist Papers published from October 1787 until August 1788, five were written by Jay, and the remaining 80 by Hamilton and Madison [not all can be attributed to specifically one of the two]. Though “general welfare” in some form would be mentioned a few times in early articles, it was specifically in reference to the purpose of the Constitution or used as a general term [Federalist No. 1, 12, 18, 22, 23, 26, 33, 34] it was not until Federalist No. 41 written by James Madison, did Article I Section 8 Clause 1 would be itself addressed and along with it “General Welfare”.

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

James Madison one of the most influential delegates to the Convention, one of the primary authors of the Virginia Plan presented in the Convention, and later one of the leading forces in the Bill of Rights, here asserts that the “general welfare” provision must be, not can be, “singularly expressed by the terms “to raise money for the general welfare”,”. This brings us back to the arguments first described in Part 1, what did the term mean? Though this instance does not describe what “general welfare” means, it does definitively describe what it is not, a broad power to make law. Madison here unequivocally ties it to only the raising of money, which the entire clause as whole entails.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Madison also states earlier on, “Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it”. Here he is stating that specific powers are enumerated or defined, and the fact they are listed denies credence to the dissenting argument on the clause’s meaning. Madison is implying, why would such a broad power be put in place and then be followed by enumerated or defined powers which would by the opposing concept of general welfare[broad power] would be part of general welfare in the first place? The implication is, that general welfare is NOT a broad power, but is limited to taxing only, and the powers Congress does have are specifically enumerated and defined following clause 1. As was pointed out in Part 1, this same term used in a similar way conveyed no power to the Congress Assembled, and just such is summed up by Madison at the end of Federalist No 41.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

Madison again mentions General Welfare in Federalist 45, but this is passing general reference of the overall Common Defense and General welfare in regards to the new taxation powers in the Constitution, and is not specifically addressing the provision, rather a general purpose statement. General welfare of some similar form is also used in Federalist No. 46 and 61, also in general context. The final mentioning of general welfare in any context in the Federal Papers was in Federalist No. 63, but in this final use of general welfare in the Federalist Papers, it is once again simple descriptive use on what the responsibility of government is, to ensure the general welfare as a descriptive term, and not one that conveys power.

Even in the final paper, Federalist No. 85 by Hamilton, addressing some of the final concerns of the Anti-Federalist that had yet to be addressed, never refereed to General Welfare, nor to Article I Section 8 in the entire paper. The single biggest concern for the Anti-Federalist was in the forming of a Federal Government that carried too much power, and the Federalist wished to relieve these concern. But in the end, so little was thought of the term general welfare as a potential or real threat of abuse of power that it warranted only a couple of paragraphs of explaining, in only one paper, never to be directly mentioned again, over the entire series of 85 writings over nearly a one year period. to quell the publics concerns and explain the new Constitution, and was sufficient to cause New York to carry ratification by a narrow 30-27 margin.

The States Debates during Ratification

Following the Convention of 1787, the new Constitution was presented to the Congress Assembled, and then forwarded to each of the States for Ratification pursuant to Article VII of the Constitution. It would take Nine States to Ratify the Constitution for it to take effect and this was anything but a sure thing in 1787. At the same time the Federalist and Anti-Federalist were writing articles on the pros and cons on ratification, while State Legislatures were calling and convening Conventions to review and either adopt or reject the proposed Constitution. The debates in these Conventions would be just as contentious as the debate in the press about ratification and general welfare was no stranger to these discussions either. 14 States debated and eventually ratified the Constitution by 1791. 14 States?, 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.

DELAWARE

Delaware was the first State to sit a Convention for Ratification that began on December 3, 1787, and as such also became the first State to ratify the Constitution on December 7, 1787. Debate in the Convention for Delaware was rather short when compared to a few of the other States, since Delaware did get its most limiting factor in the Convention, that being equal State Representation with the Senate fulfilling that requirement. Delaware’s Convention was rather quick convening on Monday, and unanimously ratifying that Friday. Delaware to records did not hold any debate over the General Welfare Clause.

PENNSYLVANIA

Even though Delaware was the first to ratify, they were not the first to seat a Convention. Pennsylvania seated their Convention on November 20, 1787, but as Delaware quickly ratified the Constitution Pennsylvania tirelessly debated it, and general welfare was not immune to the debates, and the opening volley was not small on November 28, 1787.

Mr. President, and it is reasoned upon as a fact, that the Congress will enjoy over the thirteen states, an uncontrolled power of legislation in all cases whatsoever; and it is repeated, again and again, in one common phrase, that the future governors may do what they please with the purses of the people, for there is neither restriction nor reservation in the Constitution which they will be appointed to administer. Sir, there is not a power given in the Article before us that is not in its expression, clear, plain, and accurate, and in its nature proper and absolutely necessary to the great objects of the Union. To support this assertion, permit me to recapitulate the contents of the Article immediately before First, then, it is declared that "the Congress shall have power to lay, and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States." Thus, sir, as it is not the object of this government merely to make laws for correcting wicked and unruly men, but to protect the citizens of an extensive empire from exterior force and injury, it was necessary that powers should be given adequate to the discharge of so important a duty. But the gentlemen exclaim that here lies the source of excessive taxation, and that the people will be plundered and oppressed.

Immediately the concern was of unrestrained power given to Congress, but the concern here was mainly limited to the power of taxation alone. The Congress in the general welfare clause was given the ability to tax to the point of oppression. The counter argument was, who would be a more qualified body to be the judge of common defense and general welfare, and the fact the a similar power already existed in the Articles of Confederation also without such checks on the power.

To whose judgment, indeed, could be so properly referred the determination of what is necessary to accomplish those important objects, as the judgment of a Congress elected, either directly or indirectly, by all the citizens of the United States? For if the people discharge their duty to themselves, the persons that compose that body will be the wisest and best men amongst us; the wisest to discover the means of common defense and general welfare , and the best to carry those means into execution without guile, injustice, or oppression. But is it not remarkable, Mr. President, that the power of raising money which is thought dangerous in the proposed system is, in fact, possessed by the present Congress, though a single house without checks and without responsibility.

What should be noted here is two points. One the point that the Convention believes the best and wisest people will be the ones elected to the Congress, but also of its direct correlation presented to the Articles of Confederation (current Congress at the time was still under the articles). As previously discussed (Part 1) the Articles of Confederation also used the same term in the same manner, but it did not convey lofty power, in fact none at all. The relation is implying that the term is to carry the same weight and meaning as it does under the Articles of Confederation. Still to this point in the debates only this power is only been regarded in relation to taxation.

It will be said, perhaps, that the treasure, thus accumulated, is raised and appropriated for the general welfare and the common defense of the states; but may not this pretext be easily perverted to other purposes since those very men who raise and appropriate the taxes are the only judges of what shall be deemed the general welfare and common defense of the national government? If then, Mr. President, they have unlimited power to drain the wealth of the people in every channel
(December 4th),Certainly Congress should possess the power of raising revenue from their constituents,for the purpose mentioned in the eighth section of the first Article, that is "to pay the debts and provide for the common defence and general welfare of the United States."

But also addressed was the lack of power the Articles of Confederation gave the Congress, and that the new Constitution did need to give the government internal powers as well, specifically in regards to taxation.(December 11, 1787)

I know that Congress, under the present Articles of Confederation, possess no internal power, and we see the consequences; they can recommend; they can go further, they can make requisitions, but there they must stop,….. But certainly it would have been very unwise in the late Convention to have omitted the addition of the other powers; and I think it would be very unwise in this Convention, to refuse to adopt this Constitution, because it grants Congress power to lay and collect taxes for the purpose of providing for the common defense and general welfare of the United States.

Throughout the Pennsylvania convention, in regards to general welfare, concern was addressed about the power it did convey, but this power was only addressed in regards to taxation, and not the ability to make other laws. The Pennsylvania Convention was concerned that it gave too much power and it may be used to plunder the States, prevent the States ability to raise revenue and be oppressive in its ability to tax. But in the end the understood need to also allow Congress to have internal powers which were lacking under the articles of Confederation, and its relation of what it implied in the Articles, but now with power to execute them in limited fashion (Direct Taxes were prohibited and well as exports among others, combined with the whole document was enough for the Convention to ratify it. on December 12, 1787 by a vote of 46-23, becoming the 2nd state to ratify.

However on December 18, 1787 the minority from the Pennsylvania publishes its “Dissent of the Minority from the Pennsylvania Convention”, detailing their objections to the Constitution (as seen in Part 6)

NEW JERSEY

On December 11, 1787 the Ratification Convention convened in New Jersey. Convention records do not indicate any significant debate concerning general welfare in New Jersey. n December 18, 1787 New Jersey became the 3rd State to ratify the Constitution by a unanimous vote.

GEORGIA

December 25, 1787 Christmas Day, the Georgia Convention seats. As with Delaware and New Jersey before her, nor significant debate about general welfare is found in the records. On January 2, 1788 Georgia became the 4th State to Ratify the Constitution.

CONNECTICUT

The Connecticut Convention seated on January 3, 1788 by this time Four States had already ratified the Constitution. Oliver Ellsworth [Delegate to the Convention, did not sign the final draft] rose and presented the first argument about general welfare to the Connecticut Convention.

This is a most important clause in the Constitution; and the gentlemen do well to offer all the objections which they have against it. Through the whole of this debate, I have attended to the objections which have been made against this clause; and I think them all to be unfounded. The clause is general; it gives the general legislature "power to lay and collect taxes, duties, imposts and excises to pay the debts, and provide for the common defence and general welfare of the United States."

Ellsworth went on the list three specific objection.

It was too extensive
It was partial
Congress ought not possess the power to tax at all

In his first objection he described that it gave the congress the power to place a tax on anything. But his arguments were only limited to the topic of taxation, and not to a general power. As with other arguments about excessive taxation and corruption and oppression, he also argued that the taxes of Connecticut should not go to the citizens of New York. He also insisted that Congress should not be able to tax since since it also had the power to declare war, or to keep the purse and the sword in the same house, this is the making of a despot government.

But of note once again, Oliver Ellsworth’s discussion on general welfare also circled around only the idea of it being used for taxation, not the power to make general laws, though he did bring up the subject of Congress having both the power to declare and fund war, an unsettling proposition in the country at the time.

Despite Oliver Ellsworth’s objections, Connecticut became the 5th State to ratify the Constitution on January 8, 1788 by a 128-40 vote.

MASSACHUSETTS

Massachusetts convened its Convention on January 9, 1788 the day after Connecticut became the 5th State to ratify the Constitution. Massachusetts would become the first State to also propose Amendments or other changes to the Constitution in part with its ratification.

January 17th was the first time Article I Section 8 Clause 1 would be addressed, but it was in reference that taxes would be collected would be apportioned according to the population of the States. The concern was that this was a flawed measure, since early census’ counts were far from perfect.

On January 21, Mr. Dawes made this observation about the clause

The reason of giving this power is to render the sword unnecessary for without this power Congress cannot compel a State to pay without an army—perhaps Congress may never have the necessity as they now have imposts and excises. But Congress will not raise direct taxes but for necessity.

He understood the need of the National Government to not only be able to raise money, but that the power had to be specifically provided, since it was not in the Articles of Confederation, and the Congress Assembled had no power to compel States to pay what was needed. This clause gave the Congress the power to tax, to not need an Army to raise funds, and that it was also noted direct taxes were prohibited, and the power was restricted to only duties and impost taxes. But as seen in most other debates about the power since the Convention of 1787 broke, the concern of restricting State power was not lost on Mr. Bodman.

Objects to direct taxation. Congress should have some powers, but,it is difficult to draw the line, but it ought to be drawn between the sovereignty general government and of each State. Now the sovereignty of this State is given up, as the general government may prevent our collecting any taxes. Now if the power had been conditional, if a State refused, he should have no objection. Now Congress may prevent each State from supporting its own government.

Mr. Singletary followed this with:

The power is unlimited in Congress—he objects against it—a new case—as much power as was ever given to a despotic prince—will destroy all power in this of raising taxes, and we have nothing left—the only security is, we may have an honest man, but we may not have—we may have an atheist, pagan, Mahommedan— must take care of posterity—few nations enjoy the liberty of Englishmen. Is for giving up some power but not every thing—no bill of rights—civil and sacred privileges will all go.

This would be a prelude to Massachusetts proposing a variety of Amendments to the Constitution.

On January 22nd as debated moved forward, this concept of too much power granted to the Federal Government and a need in restricting powers was expressed

These words, sir, I confess are an ornament to the page. And very musical words—But they are too general to be understood as any kind of limitations of the power of Congress, and not very easy to be understood at all. When Congress have the purse, they are not confined to rigid economy, and the word debts here is not confined to debts already contracted, or indeed, if it were, the term "general welfare" might be applied to any expenditure whatever.

Here is one of the first references seen of it being potentially used as an expenditure power, not solely a taxing power. This point was argued by both sides after this, with some taking the position it granted Congress too much power, while others it was checked by the enumerated powers. The damage was done though, Massachusetts would be proposing Amendments to limit the potential abuse of not only this power, but others of concern as well.

Debate on general welfare transpired for other parts of the Convention in the same manner as seen in other states. On January 31, 1788 the Convention agreed to the Constitution, but with the request of Amendments. After some revising Massachusetts finally became the 6th State to ratify the Constitution, with the following provision.

And as it is the opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.

The very first amendment proposed was this to help quell the apprehension of many over an excess of power to the Congress, which included General Welfare.

First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.

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 would continue 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 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 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.

Post Ratification Writings

After the Constitution was ratified and went into effect, debates on the meaning of parts did not cease, even among the Founders. George Washington was only the first President to start to have to deal with questions regarding if something is permitted in the Constitution, but he certainly would not be the last.

This part is not going to be an expose` into all the writings post ratification since that would take up volumes, rather this will focus on the first and immediate understanding of the clause, before differing interpretation which may have been swayed by power begin to arise. The main focus will be on two writings one by Thomas Jefferson to President Washington in 1791, and the other by James Madison to Henry Lee in 1792, among others.

To put into context Thomas Jefferson and James Madison were not often on the same side of a subject (for their time at least). James Madison was a Federalist, arguing for the ratification of the Constitution in the Federalist Papers, and for a stronger Federal Government. Thomas Jefferson was an Anti-Federalist, he argued more for a weaker Federal Government, and more for individual and state liberties and freedom. Yet even being at the time polar opposites in the political realm, they both are in agreement concerning general Welfare.

Early in George Washington’s first term Alexander Hamilton urged for a Bank of the United States, in which the funds of the Federal Government would reside among others, a precursor to the concept of the Federal Reserve. In order to establish this bank, Congress first needs the power to establish the bank. Thomas Jefferson who was the Secretary of State at the time wrote George Washington a letter giving his understanding of the proposed bank. In his letter he argues through various parts of the Constitution of how the Bank was not a power granted, including general welfare.

Thomas Jefferson to George Washington (February 15, 1791)

1. “to lay taxes to provide for the general welfare of the U.S.” that is to say “to lay taxes for the purpose of providing for the general welfare .” for the laying of taxes is the power and the general welfare the purpose for which the power is to be exercised. they are not to lay taxes ad libitum for any purpose they please but only to pay the debts or provide for the welfare of the Union. in like manner they are not to do anything they please to provide for the general welfare , but only to lay taxes for that purpose. to consider the latter phrase, not as describing the purpose of the first, but as giving a distinct & independent power to do any act they please, which might be for the good of the Union, would render all the preceding & subsequent enumerations of power completely useless. it would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the U.S. and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they pleased. it is an established rule of construction, where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, & not that which would render all the others useless. certainly no such universal power was meant to be given them. it was intended to lace them up straitly within the enumerated powers, and those without which as means, these powers could not be carried into effect. it is known that the very power now proposed as a means, was rejected as an end, by the Convention which formed the constitution. a proposition was made to them to authorize Congress to open canals, & an amendatory one to empower them to incorporate. but the whole was rejected, & one of the reasons of rejection urged in debate was that then they would have a power to erect a bank, which would render the great cities, where there were prejudices & jealousies on that subject adverse to the reception of the constitution.

Thomas Jefferson clearly does not feel that Congress was given this amount of power, to be able to create a US Bank. He contends that the power is limited only to the power of taxation, not a power of expenditure. The power to spend money is enumerated in the following clauses of Article I Section 8, the first clause being the power to tax, the following clauses on how it may spend. He gives an example in regards to the canals on how this power was directly rejected due to the fact it may unnecessarily cause an unwanted growth of powers. For the most part, Thomas Jefferson’s position in regards to general welfare can be summed up in the following portion of his letter.

“but as giving a distinct & independent power to do any act they please, which might be for the good of the Union, would render all the preceding & subsequent enumerations of power completely useless. it would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the U.S. and as they would be the sole judges of the good or evil,”

Thomas Jefferson contends that if “general welfare” was a general power phrase that allows Congress to be the sole judge of its limits, it does not place limits on Congress, rather it allows them to do what ever they desire, in the name of “general welfare”. Jefferson supports this by noting that the Constitution includes very specific powers, if one clause could give all the power to Congress it desired why would it enumerate any at all.

In January 1792 James Madison also penned two letter concerning general welfare, one to the Governor of Virginia Henry Lee, and the other to a Virginia Lawyer and Politician Edmund Pendleton. The first is the letter to Governor Henry from January 1 1792 in regards to an appropriations bill before the Congress.

What think you of the commentary (pages 36 & 37) on the terms “general welfare”?—The federal Govt has been hitherto limited to the specified powers, by the Greatest Champions for Latitude in expounding those powers—If not only the means, but the objects are unlimited, the parchment had better be thrown into the fire at once (sic).

James Madison is contending the Federal Government is limited in its power to the specified enumerated powers (Article I Section 8). He continues to say that general welfare is a means (presumably to tax, since it is the only means afforded in Article I Section 8), and is not the object of taxes, that being to spend on the general welfare. If closes his statement by saying if general welfare was an unlimited in the objects (ability to spend), “the parchment had better be thrown in the fire at once”. He is saying that it no longer limits the Government if this term gives them unlimited ability, and that any restraints placed upon it are useless, since anything can be done in the name of “general welfare”.

His next letters later that month was to Edmund Pendleton on January 21, 1792. This letter is in response to a letter from Pendleton regarding subsidizing the Cod fishing industry. [Note: Two different letters are both cited as being from James Madison to Edmund Pendleton on January 21, 1792]

If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction. Remaining always & most Affecly yours, James Madison (sic)

Once again James Madison addresses that general welfare is not a limitless power at the discretion of Congress to use, and directly states it was not for what Congress deemed to spend money on. To say Congress has this power, Government would no longer be limited, but would have limitless power, since it would be at only Government discretion of what “general welfare” was. He also goes on to describe the origin of the term, in that it was copied from the Articles of Confederation (Part 1). This was a term which conveyed no power to the Congress Assembled, and that was the reason it was chosen. This would also explain the complete lack of debate in the Convention of 1787 on the use of the term (Part 2, Part 3, Part 4), and its sudden appearance in Article I Section 8 clause 1, near the end of that Convention. It was viewed as a descriptive term of the specified (enumerated) powers, and it was for that very reason it was chosen to be used.

A Second Letter is also attributed to be from James Madison to Edmund Randolph for January 21, 1792 [These are two separate letters, and the reason they are both listed for the same day may be lost in history]. This one is also in regards to the Cod Fishing subsidies proposed before Congress.

“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”

Similar to the other letter cited to be being to Edmund Pendleton, James Madison argues that general welfare is NOT a general power enabling term, and that it being used as such is to give the Federal Government the power over everything it desires. In this letter he goes into examples of how the power could be expanded into every aspect of life, from schools, roads and police. If general welfare was used as a power enabling term to Congress, “thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress”. He closes out his statement that just such a use would, “subvert the very foundations, and transmute the very nature of the limited Government”, which was the very goal of the Constitution.

Through the years James Madison’s view on general welfare did not change, even into his Presidency. In 1817, Congress passed a public works bill, to fund roads, canals and such, using the guise of “general welfare” to justify the act. James Madison vetoed this bill on March 3, 1817. This is his message to the House of Representatives upon returning the bill, the originating house of the motion.

To the House of Representatives of the United States:
Having considered the bill this day presented to me entitled "An act to set apart and pledge certain funds for internal improvements," and which sets apart and pledges funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense," I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
Madison Veto of federal public works bill March 3, 1817

Just as he stated to Edmund Pendleton over 25 years earlier, James Madison contends the general welfare provision does not empower Congress to pass law in the name of general welfare, as John Calhoun was doing with this bill. He again expresses that Congress was never given this broad power and that it would be, “contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper”. He is again stating the power of Congress to make law is limited to the specific enumerated powers, and general welfare is not one of them (and also cites Judicial Opinion to this point on just that). To view general welfare as the power to DO in the name of general welfare makes the following clause in the Constitution, useless, since this one clause if used as Congress suggests, would enable them in itself to do all the enumerated powers and more. This goes back to the line of thought of “why would the enumerated powers be listed, if general welfare could it all?” The answer to that question is, general welfare does not do it all, so general welfare must have some other purpose, and that is to describe WHY Congress has the powers it does, NOT give Congress the power to do as it sees fit in its name.

With the exception of James Madison’s veto in 1817, this ends the debate and discussion of general welfare. From this point on the debates and discussion now enter the new United States Supreme Court, for it to decide what general welfare means, which it soon takes up with the United States Bank.

But from this you can see how general welfare came to be in the Constitution. How it was a part of the articles of Confederation and in State Constitution, to its inclusion into the Constitution of the United States and its circumstances surrounding that. The debates after the Convention ended on both the Federalist and Anti-Federalist side have been presented, and as well as discussing how the States viewed this clause, and how they responded to it. We also have looked at how two Political opposites viewed the same clause in different matters, but came to the same conclusion.

The debates, proceedings, Conventions and letter that have been discussed here are by no means the entire debate and series of arguments that occurred surrounding this term, but just a broad sample, but does cover the extreme opposite points of view that existed during these discussion. It is now up to you to determine on your own, with the discussions presented to decide “What does General Welfare mean”?

Final Thoughts

When I started to write about general welfare, I at first thought it might be a two, three maybe four part article, but it eventually morphed into TEN and now eleven parts, and I still did not cover all that I wanted to. I was however was able to cover the various arguments and circumstances surrounding the term “general welfare” in many respects. Throughout the discussion we have covered some of its first origins and uses, how it came to be part of the Constitution, and the debates about it after the Convention finished, and leading up to when the Supreme Court started to hear arguments over it [which is another entire discussion in itself]. The focus here has not been what Supreme Court has thought of the term in Article I Section 8 Clause 1, but how others thought of it before and shortly after it even became law. Why was it used, and what was its pedigree to those who decided to put it in the Constitution, and how it was viewed by those who ratified it.

Throughout all of these discussion from the Articles of Confederation to Thomas Jefferson’s and James Madison’s letters a few things become relatively evident about general welfare.

It’s origin is directly from the Articles of Confederation. In those Articles, the term carried no weight of power at all, but used to describe the purpose of the following powers.
No debate occurred in the Convention of 1787 over this term. This is compared to the lengthy debates on nearly every other power granted in the Constitution. For this term to be a means of a broad general power, and NOT be debated, while other much less significant powers created intense debate is remarkable. This can only imply it was never viewed as a general power.
Even in it most expansive state of possible perception during the debates of ratification by both Federalist and Anti-federalist, it was not seen as more than a means to tax, not as a power to make law, with the exception of very few compared to the whole.
No less than Seven of the Thirteen Colonial States, proposed amendments to the Constitution with the direct purpose of restraining this power, and this eventually became the 10th Amendment to prevent it from becoming a broad general power.

General welfare was never intended to grant Congress to make laws as it felt for the general welfare, at most it granted the power to tax for the general welfare.

As James Madison reports that during the Convention the use of the term was a direct copy of that use from the Articles of Confederation, as stated in his letter to Edmund Pendleton. James Madison should certainly know if this was the case or not, since during the Convention James Madison without question kept the most detailed notes, other Delegates made it a habit to provide Madison with written copies of speeches or plans to have placed in his record, and most importantly was a member of the Committee of Detail that drew up the final drafts of the Constitution in which general welfare was inserted in this clause. This is also further supported by the lack of debate on the use of general welfare at all in any notes from the Convention. With general welfare being a copy of the Articles of Confederation due to it already being understood to what it implied and meant in the United States, it would imply its power would also be the same as the Articles of Confederation, which was none (Part 1). In the Articles of Confederation general welfare was understood to be a descriptive clause of what the following enumerated powers where for. Those enumerated powers in the Articles of Confederation where FOR the general welfare, general welfare was never considered a power itself.

If general welfare was considered a power itself in the Articles of Confederation, there would never have been the need to “amend or alter” them, since the Congress Assembled would have had the authority to act under the pretense of '”general Welfare”. But the Congress Assembled could not act like this, because they did not have the power to. General welfare is used twice in the Articles of Confederation and the Constitution, once in Article III of the Articles of Confederation which described the purpose of the Articles of Confederation, once in the preamble of the Constitution (which also describes the purpose of the Constitution) and once in the first clause of the portions enumerating the powers of Congress in both documents. If the use is the same in the Constitution as it was in the Articles of Confederation, and the reason it was used in the Constitution was to be a copy of its use from the Articles of Confederation as James Madison reports in 1792, than general welfare in the Constitution can not imply more power than the Articles of Confederation, which was none, and only describe a purpose, not a means of power.

During the debates of the Convention of 1787, debate never arose on the term general welfare. This is astonishing given the considerable debate to the other powers that would have much less effect on the Government’s power overall. Slavery was a very contentious topic throughout the Convention, and many concessions were made to the southern states in regards to slavery, to ensure the Federal Government could not itself abolish the institution, the three-fifths compromise which was a means to ensure more southern representation in the House of Representatives hence more power for the southern states. Article I Section 9 Clause 1 prohibited Congress making any law that restricted the importation of Slaves for at least 20 years, since the control of commerce with foreign nations was a power granted to Congress. Article V prohibited an Amendment to the Constitution to alter Alter I Section 9 Clause 1. With the concern over slavery to ensure that the Federal Government could not abolish it, could not restrict its trade for at least 20 years and to give partial representation and power to slave states in the House of Representatives, but NOT have general welfare ever part of the slave discussions is remarkable. If general welfare was ever intended to be a power given to Congress to make law as it saw fit for the “general welfare”, it should surely mean it could abolish slavery for the “general welfare” of those people, but this was never brought up. The lack of its discussion at all with slavery can only mean one thing about general welfare, no delegate in the Convention saw it as an actual power Granted to Congress, but only a description of the purpose of other powers, and this fully supports James Madison’s assertion that it was directly copied from the Articles of Confederation, where it carried no power.

During the post Convention debates among the Federalists and Anti-Federalists, and among the State Ratification Conventions, general welfare was first seen in concerning manner. But even with these concerns, with exception of a relatively small few of the dissent, those having concern with the term general welfare were not concerned about it being a”general power” to make law, but too much power on taxation. The prevailing concern among the Anti-Federalists and States was that Congress could tax whatever they desired for the “general welfare”, except those items specifically prohibited in Article I Section 9. That this broad power to tax would suffocate the state’s ability to raise taxes, and it could be a means of the Federal Government to render the States impotent in their ability to govern by cutting off their means of revenue. Few overall were concerned about it being a power to make law, though there were a few. The reason only a few happened to be concerned about its ability to make law, was it was part of a taxation clause, and specific enumerated powers were listed. However between the concern of Congress’ ability to tax, and the added fears of it giving too much power in general by others, seven States demanded Amendments to the Constitution (Maryland, New Hampshire, Virginia, North Carolina, Massachusetts, Rhode Island). Each one of these states in part because of “general welfare” submitted an amendment that stated in some manner:

All powers not specifically listed for the Federal Government, are reserved to the States.

Six of the seven States ratified the Constitution contingent that the Constitution would be amended with this and other Amendments, North Carolina refused to ratify until it was Amended. What is important to note here is, the State Conventions are the ratification body that will cause the Constitution to come into effect. They are the ones who evaluating the powers and giving their assent to give power to the Government. These bodies understanding was, it was at most a taxation clause, with some successfully insisting that this power be checked in exchange to ratify and give the assent in handing these powers over. They saw issues of concern and demanded they be addressed, which they were. Throughout the Ratification debates concern existed of too much Federal Power being given just in the power to taxation, which lead to 10th Amendment, the Conventions would not have ratified the Constitution if general welfare was understood by them to be a means of general law making power.

After ratification took place, several topics immediately started to test the limits of the Federal governments Constitutional power, which drew the response of both Thomas Jefferson and James Madison, among others. Political opposites, even these two agreed that general welfare was never intended, or understood to be a general power of law, but only a description of what powers Congress was given in the enumerated powers of Article I Section 8. With James Madison’s letters, he brought the argument back to the beginning, stating it was a direct copy of the Articles of Confederation, in which, General Welfare is NOT a power itself, but only a descriptive term of the enumerated powers to follow.

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.

¹ James Madison Notes on the Convention of 1787

² Charles Pinckney Draft Constitution, presented on May 29th 1787. No record from the Convention of 1787 itself outlines Pinckney’s proposed Constitution, though Journals do reflect the fact he submitted one for consideration. The Draft used as his proposal was submitted by Pinckney himself in 1818 years after the Convention, when an attempt was being made to collect and preserve all information from the Convention itself by future President John Quincy Adams. The fact that limited records from the Convention details his proposals does call into question the accuracy of the Draft he submitted as to being the one actually proposed on May 29, 1787, though notes from James Wilson discovered in the early 1900’s tend to show much a what he submitted to be accurate.

³Encyclopedia Britannica

References:

Articles of Confederation
United States Constitution
Constitutions in effect in 1787 of; Pennsylvania, Maryland, New York, North Carolina, New Hampshire
Max Farrands records on the Convention

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Sunday, January 2, 2011

General Welfare (complete)