General Welfare (complete)

 

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.

General Welfare (Part 11) 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.

General Welfare (Part 10) 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.

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

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

General Welfare (Part 8) The States Debates during Ratification (States 1-6)

Following the Convention of 1787, the new Constitution was presented to the Congress Assembled, and than 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 (Part 7) and Anti-Federalist (Part 6) 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.

General Welfare (Part 7) 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.

General Welfare (Part 6) 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.

General Welfare (Part 5) 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 (that was discussed in Part 2, Part 3 and Part 4). 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.

General Welfare (Part 4) 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 (as discussed in Part 3), 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.

General Welfare (Part 3) Debates in Convention, Committee of Detail

As already discussed [in Part 2]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.

General Welfare (Part 2) Debates in Convention, the First Drafts.

 

How did “General Welfare” end up in the Constitution? As noted in Part 1, 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 [as described in Part 1] 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 as discussed in part 1, 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?

Part 1 : Part 2 : Part 3: Part 4 : Part 5 : Part 6 : Part 7

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.

General Welfare (Part 2) Debates in Convention, the First Drafts.

 

How did “General Welfare” end up in the Constitution? As noted in Part 1, 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

General Welfare (Part 1) Other uses of the term in 1787.

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?