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JUDGE STORY'S POSITION ON THE SO-CALLED GENERAL

WELFARE CLAUSE

PROPOSITIONS SUGGESTED IN CONSTITUTIONAL CONVENTION ON SUBJECT OF POWERS OF CONGRESS-JUDGE STORY'S VIEW AS SET FORTH IN HIS COMMENTARIES-PRINCIPLES OF INTERPRETATION EMPLOYED AND ONE-SIDED APPLICATION-CONCLUSION THAT THE WORDS “COMMON DEFENSE AND GENERAL WELFARE" ARE MERELY A LIMITATION UPON THE TAXING POWER RESULTS IN ANOMALOUS CONDITION

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By HENRY ST. GEORGE TUCKER, President American Bar Association, 1904-8;

Member of Congress; Member of Virginia Bar

(From the American Bar Association Journal, July, 1927, p. 363) Mr. President and gentlemen of the Georgia Bar Association, I make no apology for presenting to you to-day as the subject of my address a technical and abstruse question, because it involves the foundation stone of our form of government.

The subject to which I invite your attention may be put in this form, "Judge Story's position on the so-called general welfare clause of the Constitution of the United States."

The words "the general welfare" are to be found in two places in the Constitution-in the preamble thereto and in Article I, section 8, clause 1. All reputable writers concur in the statement that the words of the preamble to the Constitution constitute no grants of power, and therefore our investigation is confined to the words as found in Article I, section 8, clause 1, which reads:

The Congress shall have 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; but all duties, imposts, and excises shall be uniform throughout the United States.

It will be observed by reading the whole section carefully that the above clause is the first of 18 clauses, placed consecutively one after another, separated by a semicolon from each other, each beginning with the word "To with a capital “T," and all 18 clauses constituting one sentence, the last clause of which is not a separate grant of power like the others, but is intended to perfect and enlarge the previous 17 grants of power to Congress. It is known as the coefficient clause, and reads:

The Congress shall have power to make all laws which shall be necessary and proper for carrying into 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.

To a proper understanding of the question it is proper to examine the propositions suggested in the Constitutional Convention on the subject of the powers of Congress.

1 Address delivered before annual meeting of Georgia Bar Association held at Tybee Island on Juno 1927.

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Mr. Hamilton's plan, on the powers of Congress, provided that the Legislature of the United States should have powers to pass all laws whatsoever subject to the negative hereafter mentioned," which pegative was the power of the Executive to have a negative on all laws about to be passed.

Mr. Randolph's plan proposed Congress should have all powers which it possessed under 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," etc.

Mr. Patterson's plan provided that Congress should have all powers which it possessed under the Confederation and power "to pass acts for raising a revenue, by levying a duty or duties on all goods, etc., imported into any part of the United States, etc., and by postage on all letters

to be applied to such Federal purposes as they shall deom proper and expedient, to pass acts for the regulation of trade and commerce as well as with foreign nations as with each other," etc.

Mr. Pinckney's plan, offered on the 29th of May, 1787, three days after the Convention met, provided :

The Legislature of the United States shall have power to lay and collect taxes, duties, imposts, and excises;

To regulate commerce, etc.;
To borrow money, etc.;

To establish post offices; containing in all 21 specific grants of power, the last of which reads, "and to make all laws for carrying the foregoing powers into execution."

Pinckney's plan, as introduced, on this subject came out of the convention on the 15th of September in form and substance pretty much as it was introduced on the 29th of May, with this change, that on the 4th of September there was added to clause 1, after the word “excises" the words “to pay the debts and provide for the common defense and general welfare of the United States."

Hamilton's fight in the convention was to give to Congress unlimited power. Pinckney's plan prescribed definite powers to Congress. This was the struggle of the convention, and while Hamilton's plan, on this clause, was practically voted down six times in the convention, either directly or by voting up a distinct opposing proposition, his followers have struggled to show that the words "the general welfare” put into clause 1, section 8, Article I, really mean what was specifically rejected by the convention six times. (See speech of Henry St. George Tucker (maternity bill) delivered in House of Representatives March 3, 1926, p. 15 et seq.)

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Judge Story's position on this subject can best be seen from quoting his own words on the subject, beginning at section 906 of his Commentaries, page 628, volume 1:

Dec. 906. The first clause of the eighth section is in the following words: “The Congress shall have 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; but all duties, imposts, and excises shall be uniform throughout the United States.'

Sec. 907. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded it seems necessary to settle the grammatical construction of the clause and to ascertain its true meaning. Do the words, “to lay and collect taxes, duties, imposts, and excises, constitute a distinct, substantial power; and the words, "to pay the debts and provide for the common defense and general welfare of the United States, constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious that under the color of the generality of the words to "provide for the common defense and general welfare,” the Government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, “to pay the debts and provide for the common defense and the general welfare." (But see E contra, sec. 923.)

SEC. 908. The former opinion has been maintained by some of great ingenuity and liberality of views. The latter has been the generally received sense of the Nation and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries is that which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words which are necessarily to be understood in this interpretation. They will then stand thus: “The Congress shall have power to lay and collect taxes, duties, imposts, and excises in order to pay the debts, and to provide for the common defense and general welfare of the United States"; that is, for the purpose of paying the public debts and providing for the common defense and general welfare of the United States. In this sense Congress has not an unlimited power of taxation, but it is limited to specific objects—the payment of the public debts and providing for the common defense and general welfare. A tax, therefore, laid by Congress for neither of these objects would be unconstitutional, as an excess of its legislative authority. In what manner this is to be ascertained or decided will be considered hereafter. At present the interpretation of the words only is before us, and the reasoning by which that already suggested has been vindicated will now be reviewed.

Sec. 909. The Constitution was from its very origin contemplated to be a frame of a national government of special and enumerated powers, and not general and unlimited powers. This is apparent, as will be presently seen, from the history of the proceedings of the Convention which framed it, and it has formed the admitted basis of all legislative and judicial reasoning upon it ever since it was put into operation by all who have been its open friends and advocates, as well as by all who have been its enemies and opponents. If the clause "to pay the debts and provide for the common defense and general welfare of the United States” is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers, but it plainly extends far beyond them and creates a general authority in Congress to pass all laws which they may deem for the common defense or general welfare. Under such circumstances the Constitution would practically create an unlimited national government. The enumerated powers would tend to embarrassment and confusion, since they would only give rise to doubts as to the true extent of the general power or of the enumerated powers.

Sec. 910. One of the most common maxims of interpretation is (as has been already stated), that, as an exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated. But, how could it be applied with success to the interpretation of the Constitution of the United States if the enumerated powers were neither exceptions from, nor additions to, the general power to provide for the common defense and general welfare? To give the enumeration of the specific powers any sensible place or operation in the Constitution, it is indispensible to construe them, as not wholly and necessarily embraced in the general power. The common principles of interpretation would seem to instruct us that the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it. Shal one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification? For what purpose could the enumeration of particular powers be inserted, if these

and all others were meant to be included in the preceding general power? Nothing is more natural or common than first to use a general phrase, and then to qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which no one ought to charge on the enlightened authors of the Constitution. It would be to charge them either with premediated folly or premeditated fraud.

Sec. 911. On the other hand, construing this clause in connection with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative. It becomes a qualification of that clause, and limits the taxing powers to objects for the common defense or general welfare. It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation.

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The argument of Judge Story (contained in sections 909 and 910), which demolishes the theory of the Hamiltonians, shows conclusively that the words “the common defense and general welfare," as found in this section, constitute no substantive grant of power; and he further denies that these words contain any power whatsoever. His argument is irresistible in its conclusion to any unbiased mind, but it furnishes an equally powerful argument against his claim that the words "to provide for the common defense and general welfare" are merely words of limitation on the taxing power, for his argument for the latter claim is based upon the relationship of those words solely to the first clause of section 8, and excludes their relationship to the other 17 distinct clauses in that sentence. He would thus exclude these words "common defense and general welfare" from any participation in the construction of the whole sentence. How can that consist with his language in sections 909 and 910? SEC. 910. *

The common principles of interpretation would seem to instruct us, that the different parts of the same instrument ought to be so expounded, as to give meaning to every part, which will bear it. Shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terins be retained in their full extent, and the clear and precise expressions be denied any significance?

And yet, to maintain his argument, the doubtful and indefinito terms "common defense and general welfare” are allowed to stand unconnected, unchallenged, and unaffected by the clear and precise expressions which follow. Or how can his argument be maintained against the declaration in section 910?

Nothing is more natural or common than first to use a general phrase, and then to qualify it by a recital of particulars.

If this expression controlled Judge Story in demolishing the Hamiltonian claim of a substantive power in the words "common defenso and general welfare,” why should not this same expression of his, on like principle, apply in the attempt to make them merely words of limitation on the taxing power? For this last quotation from Judge Story, section 910, shows that there is an indissoluble bond of dependence, that can not be broken, between the general expression mon defense and general welfare” and the subsequent explicit grants of power contained in the same sentence in section 8. The subsequent enumerated powers were sufficient to convince the learned judge that these general and indefinite terms could not be regarded

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as absorbing or nullifying the specifically enumerated grants. But by taking the two together, and giving to each that meaning which a just and reasonable construction justifies, he destroys the Hamiltonian argument; but alas, it is fatal to his argument holding these words to be merely words of limitation, for in it he rejects the basic foundation of his former argument. His argument showing that the Hamiltonian claim, that these words "common defense and general welfare" constituted a substantive grant of power, was based chiefly on the grammatical construction of the whole sentence, and he invoked two principles that must be admitted by all as sound, which have been quoted in sections 909 and 910; the first that the different parts of the same sentence ought to be so expounded as to give meaning to every part which will bear it, and, with striking emphasis, he asks a question which can be answered only in one way,

Shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification? and, second, a principle recognized by all authors and writers,

That nothing is more natural or common than first to use a general phrase, and then to qualify it by a recital of particulars.

These are two principles general in their application to all sentences and a fortiori when applied to one sentence, must be followed in the different construction of the same sentence; but this Judge Story does not do, but rejects the principle that all parts of the same sentence must be considered for its proper construction, which he invoked so triumphantly in overthrowing the Hamiltonian claim of a substantive power in these words, and holds that these words “common defense and general welfare” have no relation to any part of the sentence, except the first clause of section 8. Is it consistent or logical that a principle adopted in solving the one construction of a sentence should be rejected in the other? And if a general expression, as he holds, may be qualified and explained by subsequent specific grants or qualifications in the subsequent parts of the same sentence, why should 17 specific and independent grants to Congress be denied any place in aiding in another construction of the same sentence? In his argument against the Hamiltonian theory, Judge Story has forged a weapon that must, in the minds of all intelligent people, prove fatal to that theory. It is beyond question sound, reasonable, conclusive, and irresistible; but that same weapon forged by his own hand, conceived and worked out in his own brain, will, to the same minds, prove fatal to his claim that the words “common defense and general welfare” are only limitations upon the taxing power, for in reaching this conclusion he has been forced to repudiate the basic principle that made his former argument irresistible Byron has well interpreted Judge Story's position in the lines:

Bo the struck eagle stretched upon the plain,
No more through rolling clouds to soar again,
Vlowed his own feather on the fatal dart
That helped to wing the shaft that quivered in his heart

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