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.
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.
- 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,”
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 enumarated 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.”
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.
Part 1 : Part 2 : Part 3: Part 4 : Part 5 : Part 6 : Part 7 : Part 8 : Part 9
No comments :
Post a Comment