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people of the United States, but of the Government of the United States. We find this view powerfully confirmed in an address of Mr. George Ticknor Curtis, a scholarly student of the Constitution, delivered before the Georgetown University Law School in February, 1886.
(From the American Bar Association Journal August, 1927, p. 465) IS CONGRESS OR THE CONSTITUTION THE INTERPRETER OF THE WORDS "THE COM
MON DEFENSE AND GENERAL WELFARE OF THE UNITED STATES?”—DANGEROUS UNION OF POWERS IN CONGRESS RESULTS FROM JUDGE STORY'S VIEW_EMINENT AUTHORITIES OPPOSED TO HIS POSITION—THE PROPER CONSTRUCTION--WHY THE WORDS WERE INCORPORATED
If Judge Story's interpretation of this clause be admitted, namely that these words are merely limitations on the taxing power of Congress, the real difficulty is still left unsolved, for he assumes, once it is granted that they are merely words of limitation on the taxing power, that Congress is clothed with the power of determining what is the common defense and general welfare. But this is mere assumption. If no definition or description of these words is found in the Constitution, and if the Constitution failed to give their meaning, there might be some reason to adopt his suggestion; but if there be a reasonable construction of the Constitution defining these words, why should that reasonable construction be set aside to give to Congress an unlimited control over the whole Government, which Judge Story has so eloquently decried? What is the common defense? What is the general welfare of the United States? Who is to determine this common defense and general welfare? What authority, under the Constitution, has the power to say what objects come within these two terms? If taxation can be had legitimately to meet the demands of these two extensive terms where shall taxation end? What are its limits? If the objects to which taxation can be applied are unlimited, then the union of the power of taxation with the power of determining the objects to which it may be applied constitute the most tremendous engine of oppression of a free people ever conceived of by the ingenuity of man. Yet, Judge Story assumes that Congress has the power to determine what is the common defense and what is the general welfare of the United States, and that when Congress has determined that a certain object is for the common defense or the general welfare, it may appropriate the tax money which it is authorized to levy, for that purpose. This unites in Congress two great powers, dangerous because unlimited, the one to select the objects of its favor, and the other the power to appropriate money from the Treasury for such objects.
The unlimited power to tax and the unlimited power to determine their benefactions are, by Judge Story, united in the Congress, and yet Judge Story (sec. 909) affirms that this Government was intended to be a government of limited powers only. The relief from this illogical impasse, into which the learned judge would drive us, is found in the simple examination of Article 1, section 8, clause 1, and the 17 succeeding clauses constituting the whole sentence. The manner in which this article was considered and adopted in the convention, the care with which each grant was discussed and adopted, constituting the limitations on the powers of Congress, show oon
clusively that no one power, which could submerge all other powers, was ever intended by the framers of the Constitution.
A close examination of this first clause and the relation of the words "to provide for the common defense and general welfare of the United States” to the whole sentence will result in clarifying the situation. Clearness often follows confusion in construing a sentence by changing the location of its paragraphs, not the words, and will often bring out the real meaning of a sentence which seemed cloudy and uncertain. Judge Story says in order properly to understand this clause the words “in order to" should be inserted before the words "to pay the debts" (sec. 969); and as we are considering merely the phrase "the common defense and general welfare,” we will omit the words "to pay the debts" in the changes suggested below of clause 1 of this section. By a change of the collocation of the paragraphs, without the change of words or punctuation, clause 1 of section 8 above would read:
The Congress (in order to provide for the common defense ani general welfare of the United States shall have power to lay and collect taxes, duties, imposts, and excisez; but all duties, imposts, and excises shall be uniform throughout the United States.
Under this arrangement the second, third, fourth, and so on down through the 18 clauses would read as follows: 'The Congress
(in order to provide for the common defense and general welfare of the United States shall have power to borrow money on the credit of the United States.
The third clause:
in order to) provide for the common 'defense and general welfare of the United States shall have power to regulate commerce with foreign nations, etc.
The fourth clause:
The Congress * (in order to provide for the common defense and general welfare of the United States shall have power to establish a uniform rule of naturalization, etc.
And so on through all of the 18 clauses. This form of the sentence, which involves no change in the paragraphs or words or punctuation of these clauses as adopted by the convention on the 4th of September, and which is now in the Constitution of the United States, shows conclusively that the object of the framers of this clause was to provide for the common defense and general welfare of the United States by giving Congress the powers granted in the 18 enumerated powers.
Four men of great eminence have shown that the 18 specific grants of power in this sentence constituting the whole of section 8 constituted the general welfare which the Federal Convention had determined to be necessary for the Government of the United States, and no more.
Judge Cooley in his Constitutional Limitations, page 11, says:
The general purpose of the Constitution of the United States is declared by its founders (in the preamble of the Constitution) to be “to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and to our posterity.” To accomplish these purposes, the Congress is empowered by the eighth section of Article I
(1) To lay and collect taxes, etc.
And so forth, enumerating the 17 specific grants of power in this section. (See also the same author, Cooley's Constitutional Limitations, pp. 11 and 106.) Here Judge Cooley first quotes the preamble of the Constitution, which declares that one of the objects for the formation of the Government is to provide for the common defense and general welfare, and adds the significant words that the Constitution has provided a means for accomplishing that by the Federal Government, and that is, by laying taxes, borrowing money, regulating commerce, and adopting the 17 specific grants as that" common defense" and that "general welfare" which the convention concluded was sufficient for the purpose.
James Wilson, a member of the Federal Convention, afterwards on the Supreme Court of the United States, has indorsed this view most strongly (Wilson's Works, Andrews, Vol. II, pp. 56–59):
Once more, at this time: The National Government was intended to “promote the general welfare.”. For this reason Congress has power to regulate commerce with the Indians and with foreign nations and to promote the progress of science and of useful arts by securing for a time to authors and inventors an exclusive right to their compositions and discoveries.
An exclusive property in places fit for forts, magazines, arsenals, dock yards, and other needful buildings, and an exclusive legislation over these places,
and also for a convenient distance, over such district as may become the seats of the National Government-such exclusive property and such exclusive legislation will be of great public utility, perhaps of evident public necessity. They are therefore vested in Congress by the Constitution of the United States.
For the exercise of the foregoing powers and for the accomplishment of the foregoing purpose, a revenue is unquestionably indispensable. That Congress may be enabled to exercise and accomplish them, it has power to lay and collect taxes, duties, imposts, and excises.
The powers of Congress are, indeed, enumerated; but it was intended that those powers thus enumerated should be effectual and not nugatory. In conformity to this consistent mode of thinking and acting Congress has power to make all laws which shall be necessary and proper for carrying into execution every power vested by the Constitution in the Government of the United States or in any of its officers or departments,
The learned judge gives no hint in this statement that the "general welfare” was anything more than a description of those powers which were subsequently enumerated in the Constitution. There is not an intimation in his statement that Congress has any other power than those which are enumerated, and that the words "to provide for the general welfare” are merely a general description of that welfare, which is to be accomplished by carrying out certain enumerated powers.
Hon. Benjamin J. Sage, of New Orleans, some years ago published a remarkable book entitled “The Republic of Republics. It is a wonderful repository of most interesting criticism and commentaries on the Constitution. In discussing this question he affirms what has already been stated, that often times the meaning of a sentence may be clarified by changing the collocation of the clause without the change of the words or punctuation; and adopting this method, he arrives at the same result which Judge Cooley and Judge Wilson have arrived at, and he says that this section, with those changes, would read as follows:
Sec. 8. The Congress (in order to pay the debts and provide for the common defense and general welfare of the United States, shall have powerTo lay and collect taxes, duties, imposts, and excises;
To borrow money;
To regulate commerce. and so on, continuing through the 17 grants of power.
Mr. Otis, of Massachusetts, in the Fifth Congress (see Annals of Congress, 1797–1799, vol. 8, p. 1986), indorses the same view in the following language:
Mr. O. agreed that the construction was just which the gentleman put upon the first article of the eighth section of the Constitution, and that to provide for the common defense and general welfare was the end of the powers recited in the first part of that section, and that the powers were merely the means. But this is equally the end of all the other powers given to Congress by all the articles of this section, so that these words might with propriety be understood as if they were added to every clause in it, and thus from the whole section it appears clear that Congress has a right to make war for the common defense and general welfare, and of course to do everything which is necessary to prepare for such a state
The interested investigator into the meaning of this phrase, injected between the first specific grant of power to Congress and a limitation upon that grant (which of itself is conclusive against any grant of a substantive power, as claimed by the Hamiltonians) can not fail to inquire why these words were incorporated into this first clause on the 4th of September, 1787, only 11 days before the Constitution was adopted, after the convention on the 6th of August had adopted the Pinckney plan on this subject without these words. And especially is this inquiry most pertinent in reference to the words to pay the debts," for without these words we have shown that the power of Congress to pay the future debts of the Government of the United States was already secured in the coefficient clause, and the old debts of the Government were secured in a subsequent clause of the Constitution. The answer is to be found in a fact which was thoroughly demonstrated in the discussions in the convention, showing an intense and determined feeling on the part of its members that there should be no doubt as to the integrity of the new government in its obligations to its creditors. Repudiation was rampant throughout the country; States were passing laws to repudiate their debts to foreign creditors, and this feeling and spirit pervaded the whole country; and a number of propositions had been offered and passed during the proceedings of the convention emphasizing the duty of the payment of the debts of the United States; and the founders of this great Republic were determined that the integrity of the new Government should never be questioned and that this should be made clear in the organic act. In response to this feeling these words “to pay the debts" were determined upon, and they were inserted, naturally and suitably, after the power “ to lay and collect taxes." But when that was done, see the effect of it. The clause then would read:
The Cungress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts; but all duties, imposts, and excises shall be uniform throughout the United States.
Such a provision might have been construed as giving Congress the power to lay and collect taxes to pay the debts, and only for that purpose; what was to become of the other 17 grants of power that needed money to carry them out? What about commerce, post offices, post roads, if the expression “to pay the debts” had been left alone in the clause? " Expressio unius exclusio est alterius. Such a form, to say the least, might have endangered the right of Congress to appropriate to the other specific grants of power. So some words had to be added to those “to pay the debts” that would make clear the power of Congress to appropriate for all Federal purposes, as set forth in the subsequent enumerated grants. What should those words be? Three times in two days, on the 22d and 23d of August, the convention indorsed a resolution of this nature: That the Congress should “fulfill the engagements and discharge the debts of the United States.” What engagements had the United States? They are chiefly specified in the 18 specific grants in the Pinckney plan finally adopted August 16. Do not the words "fulfill the engagements” interpret the meaning of “common defense and general welfare"? Are not those the only engagements of the Government of the United States? Undoubtedly, having determined for the honor of their country that there should be an express provision to pay the debts some other words would have to be supplied to save to the Congress the right to carry out the grants of power to Congress thereinafter enumerated, and to show that its power to appropriate money was not confined alone to the payment of the debts. What should these additional words be? They selected these words: “To provide for the comimon defense and general welfare” as they embraced all the subsequent grants of power which the Convention had already determined should constitute that amount of common defense and of general welfare which the Federal Government ought to control; and being merely words of general import and without power in the Articles of Confederation from which they came, brought with them to the Constitution of the United States the same innocuous character.
Now follow the steps in their adoption.
On the 31st of August, on motion of Mr. Sherman, a committee of 11 was appointed, one from each State, to whom was referred "such parts of the Constitution as have been postponed and such parts of reports as have been acted on.” This committee consisted of Gilman, of New Hampshire; Rufus King, of Massachusetts; Roger Sherman, of Connecticut; Brearly, of New Jersey; Gouverneur Morris, of Pennsylvania; Dickinson, of Delaware; Carroll, of Maryland; Madison, of Virginia; Williamson, of North Carolina; Pierce Butler, of South Carolina; and Abraham Baldwin, of Georgia. All except Morris and Brearly had served in the Continental Congress and were familiar, therefore, with the Articles of Confederation and the lack of power of the words in these articles.
On the 4th of September they reported that clause 1 of section 1, Article VII, of the Pinckney plan should read:
The legislature 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. And the claim is made by the followers of Mr. Hamilton that these words constitute a substantive grant of power to Congress to pass all and any laws affecting the general welfare of the people of the United States; and while Judge Story, in a luminous argument shows such a claim to be preposterous, he claims that, under these words, Congress may make appropriations for any object which in their judgment they may believe to be for the co amon defense or general