I have recd. your very friendly favor of the 20th instant, referring to a conversation when I had lately the pleasure of a visit from you, in which you mentioned your belief that the terms "common defence & general welfare" in the 8th. Section of the first Article of the Constitution of the U. S. were still regarded by some as conveying to Congress a substantive & indefinite power; and in which I communicated my views of the introduction and occasion of the terms, as precluding that comment on them; and you express a wish that I would repeat those views in the answer to your letter.
However disinclined to the discussion of such topics at a time when it is so difficult to separate in the minds of many, questions purely Constitutional from the party polemics of the day, I yield to the precedents which you think I have imposed on myself, & to the consideration that without relying on my personal recollections, which your partiality overvalues, I shall derive my construction of the passage in question, from sources of information & evidence known or accessible to all who feel the importance of the subject, and are disposed to give it a patient examination.
In tracing the history & determining the import of the terms "Common defence & general welfare" as found in the text of the Constitution the following lights are furnished by the printed Journal of the Convention which formed it.
The terms appear in the general propositions offered May 29 as a basis for the incipient deliberations, the first of which "Resolved that the Articles of the 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". On the day following, the proposition was exchanged for Resolved "that an 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".
The inference from the use here made of the terms, & from the proceedings on the subsequent propositions is, that altho' Common defence & general welfare were objects of the Confederation, they were limited objects, which ought to be enlarged by an enlargement of the particular powers to which they were limited — and to be accomplished by a change in the structure of the Union from a form merely federal to one partly national, and as these general terms are prefixed in the like relation to the several Legislative powers in the new Charter, as they were in the Old, they must be understood to be under like limitations in the new as in the Old.
In the course of the proceedings between the 30th. of May & the 6th. of Augt. the terms Common defence & General welfare as well as other equivalent terms must have been dropped: for they do not appear in the Draft of a Constitution, reported on that day, by a Committee appointed to prepare one in detail; the clause in which those terms were afterwards inserted, being, simply in the Draft "The Legislature of the U. S. shall have power to lay &collect taxes duties, imposts & excises".
The manner in which the terms became transplanted from the Old into the new System of Government, is explained by a course somewhat adventitiously given to the proceedings of the Convention.
On the 18th. of Augst. among other propositions referred to the Committee which had reported the draft was one "to secure the payment of the Public debt.", and, On the same day, was appointed a Committee of Eleven members, (one from each State) "to consider the necessity & expediency of the debts of the several States, being assumed by the U. States"
On the 21st. of Augst. this last Committee reported a clause in the words following "The Legislature of the U. States shall have power to fulfil the engagements, which have been entered into by Congress, and to discharge as well the debts of the U. States, as the debts incurred by the several States, during the late war, for the commondefence and general welfare"; conforming herein to the 8th. of the Articles of Confederation, the language of which is, that "all charges of war and all other expences that shall be incurred for the common defence and general welfare, and allowed by the U. S in Congress assembled, shall be defrayed out of a common treasury" &c.
On the 22d. of Augst. the Committee of five reported among other additions to the clause giving power "to lay and collect taxes imposts & excises," a clause in the words following "for payment of the debts and necessary expences", with a proviso qualifying the duration of Revenue laws.
This Report being taken up, it was moved, as an amendment, that the clause should read "the Legislature shall fulfil the engagements and discharge the debts of the U. States"
It was then moved to strike out "discharge the debts", and insert "liquidate the claims"; which being rejected, the amendment was agreed to as proposed viz "the Legislature shall fulfil the engagements & discharge the debts of the U. States".
On the 23d. of Augst. the clause was made to read "the Legislature shall fulfil the engagements and discharge the debts of the U. States, and shall have the power to lay &collect taxes duties imposts & excises" the two powers relating to taxes & debts being merely transposed.
On the 25th. of August, the clause was again altered so as to read "all debts contracted and engagements entered into by or under the authority of Congress (the Revolutionary Congress) shall be as valid under this Constitution as under the Confederation"
This amendment was followed by a proposition (referring to the powers to lay &collect taxes &c — and to discharge the debts (old debts) to add "for payment of said debts, and for defraying the expences that shall be incurred for the common defence & general welfare". The propostion was disagreed to, one State only voting for it.
Sepr. 4. The Committee of eleven reported the following modification — "The Legislature shall have power to lay &collect taxes duties imposts and excises, to pay the debts and provide for the common defence & general welfare"; thus retaining the terms of the Articles of Confederation, &covering by the general term "debts", those of the Old Congress.
A special provision in this mode could not have been necessary for the debts of the New Congress: For a power to provide money, and a power to perform certain acts of which money is the ordinary & appropriate means, must of course carry with them a power to pay the expence of performing the acts. Nor was any special provision for debts proposed, till the case of the Revolutionary debts was brought into view, and it is a fair presumption from the course of the varied propositions which have been noticed, that but for the old debts, and their association with the terms "common defence & general welfare", the clause would have remained as reported in the first Draft of a Constitution, expressing generally a "power in Congress to lay and collect taxes duties imposts & excises"; without any addition of the phrase "to provide for the common defence & general welfare". With this addition indeed the language of the clause being, in conformity with that of the clause in the Articles of Confederation, it would be qualified, as in those Articles, by the specification of powers subjoined to it. But there is sufficient reason to suppose that the terms in question would not have been introduced but for the introduction of the old debts, with which they happened to stand in a familiar tho' inoperative relation. Thus introduced however, they passed undisturbed thro' the subsequent stages of the Constitution.
If it be asked why the terms "common defence & general welfare", if not meant to convey the comprehensive power, which taken literally they express, were not qualified & explained by some reference to the particular powers subjoined, the answer is at hand, that altho' it might easily have been done, and experience shews it might be well if it had been done, yet the omission is accounted for by an inattention to the phraseology, occasioned, doubtless, by its identity with the harmless character attached to it in the Instrument from which it was borrowed But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace not only all the powers particularly expressed, but the indefinite power which has been claimed under them, the intention was not so declared; why on that supposition, so much critical labor was employed in enumerating the particular powers; and in defining and limiting their extent?
The variations & vicissitudes in the modifation of the clause in which the terms, "common defence & general welfare" appear, are remarkable; and to be no otherwise explained, than by differences of opinion concerning the necessity or the form, of a constitutional provision for the debts of the Revolution; some of the members, apprehending improper claims for losses, by depreciated emissions of bills of credit; others an evasion of proper claims if not positively brought within the authorized functions of the new Govt; and others again considering the past debts of the U. States as sufficiently secured by the principle that no change in the Govt. could change the obligations of the nation. Besides the indications in the Journal, the history of the period sanctions this explanation.
But it is to be emphatically remarked, that in the multitude of motions, propositions, and amendments, there is not a single one having reference to the terms "common defence & general welfare", unless we were so to understand the proposition containing them, made on Aug. 25. which was disagreed to by all the States except one.
The obvious conclusion to which we are brought is, that these terms copied from the Articles of Confederation, were regarded in the new as in the old Instrument merely as general terms, explained & limited by the subjoined specifications; and therefore requiring no critical attention or studied precaution If the practice
of the Revolutionary Congress be pleaded in opposition to this view of the case, the plea is met by the notoriety that on several accounts the practice of that Body is not the expositor of the "Articles of Confederation". These Articles were not in force till they were finally ratified by Maryland in 1781. Prior to that event the power of Congress was measured by the exigencies of the war, and derived its sanction from the acquiescence of the States. After that event, habit and a continued expediency, amounting often to a real or apparent necessity, prolonged the exercise of an undefined authority; which was the more readily overlooked; as the members of the Body held their seats during pleasure, as its Acts, particularly after the failure of the Bills of Credit, depended for their efficacy on the will of the States; and as its general impotency became manifest. Examples of departure from the prescribed rule, are too well known to require proof. The case of the old Bank of N. America might be cited as a memorable one. The incorporating Ordinance grew out of the inferred necessity of such an Institution to carry on the war, by aiding the finances which were starving under the neglect or inability of the States to furnish their assessed quotas. Congress was at the time so much aware of the deficient authority, that they recommended it to the State Legislatures to pass laws giving due effect to the Ordinance: which was done by Pennsylvania and several other States. In a little time, however, so much dissatisfaction arose in Pennsylvania where the Bank was located, that it was proposed to repeal the law of the State in support of it. This brought on attempts to vindicate the adequacy of the power of Congress, to incorporate such an Institution. Mr. Wilson, justly distinguished for his intellectual powers, being deeply impressed with the importance of a Bank at such a Crisis, published a small pamphlet, entitled "Considerations on the Bank of N. America", in which he endeavored to derive the power from the nature
of the Union,
in which the Colonies were declared & became Independent States; and also from the tenor of the "Articles of Confederation" themselves. But what is particularly worthy of notice is, that with all his anxious search in those Articles for such a power, he never glanced at the terms "Common Defence & general Welfare" as a source of it.
He rather chose to rest the claim on a recital in the text, "that for the more convenient management of the general
interests of the United
States, Delegates shall be annually appointed to meet in Congress, which he said implied that the United
States had general
powers, and general
obligations; not derived from any
particular State, nor from all
the particular States, taken separately; but "resulting
from the Union
of the whole" these general
powers, not being controuled by the Article declaring that each State retained all
powers not granted by the Articles, because "the individual
possessed &could not retain
power over the others"3
The authority & argument here resorted to, if proving the ingenuity & patriotic anxiety of the author on one hand, shew sufficiently on the other, that the terms "common defence & general welfare cd. not according to the known acceptation of them avail his object.
That the terms in question were not suspected, in the Convention which formed the Constitution of any such meaning as has been constructively applied to them, may be pronounced with entire confidence. For it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant &cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.
Consider for a moment the immeasurable difference between the Constitution limited in its powers to the enumerated objects; and expanded as it would be by the import claimed for the phraseology in question. The difference is equivalent to two Constitutions, of characters essentially contrasted with each other; the one possessing powers confined to certain specified cases; the other extended to all cases whatsoever: For what is the case that would not be embraced by a general power to raise money, a power to provide for the general welfare, and a power to pass all laws necessary & proper to carry these powers into execution; all such provisions and laws superseding, at the same times, all local laws &constitutions at variance with them. Can less be said with the evidence before us furnished by the Journal of the Convention itself, than that it is impossible that such a Constitution as the latter would have been recommended to the States by all the members of that Body whose names were subscribed to the Instrument.
Passing from this view of the sense in which the terms common defence & general welfare were used by the Framers of the Constitution, let us look for that in which they must have been understood by the Conventions, or rather by the people who thro' their Conventions, accepted & ratified it. And here the evidence is if possible still more irresistible, that the terms could not have been regarded as giving a scope to federal Legislation, infinitely more objectionable, than any of the specified powers which produced such strenuous opposition, and calls for amendments which might be safeguards against the dangers apprehended from them.
Without recurring to the published debates of those Conventions, which as far as they can be relied on for accuracy, would it is believed not impair the evidence furnished by their recorded proceedings, it will suffice to consult the lists of amendments proposed by such of the Conventions as considered the powers granted to the new Government too extensive or not safely defined.
Besides the restrictive & explanatory amendments to the text of the constitution it may be observed, that a long list was premised under the name & in the nature of "Declarations of Rights"; all of them indicating a jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them. But the appeal is more particularly made to the number & nature of the amendments proposed to be made specific & integral parts of the Constitutional text.
No less than seven States, it appears, concurred in adding to their ratifications, a series of amendments, wch they deemed requisite. Of these amendments nine were proposed by the Convention of Massachusetts; five by that of S. Carolina; twelve by that of N. Hampshire; twenty by that of Virginia; thirty three by that of N. York; twenty six by that of N. Carolina; twenty one by that of R. Island.
Here are a majority of the States, proposing amendments, in one instance thirty three by a single State; all of them intended to circumscribe the powers granted to the General Government by explanations restrictions or prohibitions, without including a single proposition from a single State, referring to the terms, common defence & general welfare; which if understood to convey the asserted power, could not have failed to be the power most strenuously aimed at because evidently more alarming in its range, than all the powers objected to put together. And that the terms should have passed altogether unnoticed by the many eyes wch saw danger in terms & phrases employed in some of the most minute & limited of the enumerated powers, must be regarded as a demonstration, that it was taken for granted that the terms were harmless, because explained & limited, as in the "Articles of Confederation", by the enumerated powers which followed them.
A like demonstration, that these terms were not understood in any sense that could invest Congress with powers not otherwise bestowed by the Constitutional Charter may be found in what passed in the first Session of the first Congress, when the subject of Amendments was taken up, with the conciliatory view of freeing the Constitution from objections which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms "common defence and general welfare", unnoticed in the long list of amendments brought forward in the outset; but the Journals of Congs. shew that in the progress of the discussions, not a single proposition was made in either branch of the Legislature which referred to the phrase as admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance & silence on such an occasion, and among so many members who belonged to the part of the nation, which called for explanatory & restrictive amendments, and who had been elected as known advocates for them, can not be accounted for without supposing that the terms "common defence & general welfare", were not at that time deemed susceptible of any such construction as has since been applied to them.
It may be thought perhaps, due to the subject, to advert to a letter of Octr. 5. 1787 to Samuel Adams and another of Ocr. 16 of the same year to the Governor of Virginia, from R. H. Lee, in both which, it is seen that the terms had attracted his notice, and were apprehended by him "to submit to Congress every object of human Legislation". But it is particularly worthy of Remark, that altho' a member of the Senate of the U. States, when Amendments to the Constitution were before that House, and sundry additions & alterations were there made to the list sent from the other, no notice was taken of those terms as pregnant with danger. It must be inferred that the opinion formed by the distinguished member at the first view of the Constitution, & before it had been fully discussed, & elucidated, had been changed into a conviction that the terms did not fairly admit the construction he had originally put on them: and therefore needed no explanatory precaution agst. it. . . .
Memorandum not used in Letter to Mr. Stevenson.
These observations will be concluded with a notice of the argument in favor of the grant of a full power to provide for common defence and general welfare, drawn from the punctuation in some editions of the Constitution.
According to one mode of presenting the text, it reads as follows: "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." To another mode, the same with commas vice semicolons.
According to the other mode, the text stands thus: "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."
And from this view of the text, it is inferred that the latter sentence conveys a distinct substantive power to provide for the common defence and general welfare.
Without inquiring how far the text in this form would convey the power in question; or admitting that any mode of presenting or distributing the terms could invalidate the evidence which has been exhibited, that it was not the intention of the general or of the State Conventions to express, by the use of the terms common defence and general welfare, a substantive and indefinite power; or to imply that the general terms were not to be explained and limited by the specified powers succeeding them, in like manner as they were explained and limited in the former Articles of Confederation from which the terms were taken; it happens that the authenticity of the punctuation which preserves the unity of the clause can be as satisfactorily shown, as the true intention of the parties to the Constitution has been shown in the language used by them.
The only instance of a division of the clause afforded by the journal of the Convention is in the draught of a Constitution reported by a committee of five members, and entered on the 12th of September.
But that this must have been an erratum of the pen or of the press, may be inferred from the circumstance, that, in a copy of that report, printed at the time for the use of the members, and now in my possession, the text is so printed as to unite the parts in one substantive clause; an inference favoured also by a previous report of September 4, by a committee of eleven, in which the parts of the clause are united, not separated.
And that the true reading of the Constitution, as it passed, is that which unites the parts, is abundantly attested by the following facts:
1. Such is the form of the text in the Constitution printed at the close of the Convention, after being signed by the members, of which a copy is also now in my possession.
2. The case is the same in the Constitution from the Convention to the old Congress, as printed on their journal of September 28, 1787, and transmitted by that body to the Legislatures of the several States.
3. The case is the same in the copies of the transmitted Constitution, as printed by the ratifying States, several of which have been examined; and it is a presumption that there is no variation in the others.
The text is in the same form in an edition of the Constitution published in 1814, by order of the Senate; as also in the Constitution as prefixed to the edition of the United States; in fact, the proviso for uniformity is itself a proof of identity of them.
It might, indeed, be added, that in the journal of September 14, the clause to which the proviso was annexed, now a part of the Constitution, viz: "but all duties, imposts, and excises, shall be uniform throughout the United States," is called the "first," of course a "single" clause. And it is obvious that the uniformity required by the proviso implies that what it referred to was a part of the same clause with the proviso, not an antecedent clause altogether separated from it.
Should it be not contested that the original Constitution, in its engrossed and enrolled state, with the names of the subscribing members affixed thereto, presents the text in the same form, that alone must extinguish the argument in question.
If, contrary to every ground of confidence, the text, in its original enrolled document, should not coincide with these multiplied examples, the first question would be of comparative probability of error, even in the enrolled document, and in the number and variety of the concurring examples in opposition to it.
And a second question, whether the construction put on the text, in any of its forms or punctuations, ought to have the weight of a feather against the solid and diversified proofs which have been pointed out, of the meaning of the parties to the Constitution.
Supplement to the letter of November 27, 1830, to A. Stevenson, on the phrase "common defence and general welfare." — On the power of indefinite appropriation of money by Congress.
It is not to be forgotten, that a distinction has been introduced between a power merely to appropriate money to the common defence and general welfare, and a power to employ all the means of giving full effect to objects embraced by the terms.
1. The first observation to be here made is, that an express power to appropriate money authorized to be raised, to objects authorized to be provided for, could not, as seems to have been supposed, be at all necessary; and that the insertion of the power "to pay the debts," &c., is not to be referred to that cause. It has been seen, that the particular expression of the power originated in a cautious regard to debts of the United States antecedent to the radical change in the Federal Government; and that, but for that consideration, no particular expression of an appropriating power would probably have been thought of. An express power to raise money, and an express power (for example) to raise an army, would surely imply a power to use the money for that purpose. And if a doubt could possibly arise as to the implication, it would be completely removed by the express power to pass all laws necessary and proper in such cases. . . .
The peculiar structure of the Government, which combines an equal representation of unequal numbers in one branch of the Legislature, with an equal representation of equal numbers in the other, and the peculiarity which invests the Government with selected powers only, not intrusting it even with every power withdrawn from the local governments, prove not only an apprehension of abuse from ambition or corruption in those administering the Government, but of oppression or injustice from the separate interests or views of the constituent bodies themselves, taking effect through the administration of the Government. These peculiarities were thought to be safeguards due to minorities having peculiar interests or institutions at stake, against majorities who might be tempted by interest or other motives to invade them. . . .
The result of this investigation is, that the terms "common defence and general welfare" owed their induction into the text of the Constitution to their connexion in the "Articles of Confederation," from which they were copied, with the debts contracted by the old Congress, and to be provided for by the new Congress; and are used in the one instrument as in the other, as general terms, limited and explained by the particular clauses subjoined to the clause containing them; that in this light they were viewed throughout the recorded proceedings of the Convention which framed the Constitution; that the same was the light in which they were viewed by the State Conventions which ratified the Constitution, as is shown by the records of their proceedings; and that such was the case also in the first Congress under the Constitution, according to the evidence of their journals, when digesting the amendments afterward made to the Constitution.
[Footnotes as included or written by Farrand]
1 Crossed out: "The disagreement however was probably the result of some other consideration." 2Letters and other Writings of James Madison, IV, 131-133. 3 G. Hunt, Writings of James Madison, IX (1910), 413, reproduces this passage as follows:
"According to one mode of presenting the text: it reads as follows: Congress shall have power To lay &collect taxes duties-imposts & excises; to pay the debts & provide for the C. D. & G. W. of the U. S. but all duties imposts & excises shall be uniform; to another mode the same with commas — vice semicolons.
"According to the other mode the text stands thus: Congress shall have power,
- To lay &col. tax, ds. imp. & excises; 4Letters and other Writings of James Madison, IV, 134-137.
- To pay the debts & provide for the Com. d. & G. W. of the U. S.;
- but all ds. imp. & excs. shall be uniform throug: the U. S.
- and from this view of the text, it is inferred that the latter sentence conveys a distinct substantive power to provide for the C. D. & G. W."