Saturday, January 1, 2011

General Welfare (Part 11) Final Thoughts

General Welfare CropWhen 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.

  1. 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.
  2. 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.
  3. 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.
  4. 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 (Part 10). 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 states 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.

Part 1 : Part 2 : Part 3: Part 4 : Part 5 : Part 6 : Part 7 : Part 8 : Part 9 : Part 10

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