The “General Welfare Clause” – Part 1

Posted on December 27, 2012 by Old Marine

With all the talk of the impending “fiscal cliff” and the Left and Lame Stream Media spreading propaganda about how the GOP doesn’t care for the children, poor people or the environment, I often wondered why the GOP, just doesn’t ask the simple question, “Just where in the Constitution is any funding for the various social entitlements?” I already know the Left’s knee jerk response, “It is in the ‘General Welfare Clause’” [“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;” (Article 1, Section 8, Clause 1)]. Unfortunately, this propaganda is believed by the sheeple and others who do not know the Constitution or its history. These same sheeple also do not realize that when the States accept federal funds, for schools, police, fire and welfare (just to name a few) that the States are advocating their rights and this was not the intention of our Founding Fathers.

Now, there are some out there that will say, just who is this Old Marine and why does he THINK he knows what the Founding Fathers thought when they were establishing the Constitution. To those, I’ll say, “I don’t know what they were thinking”, BUT I can read and as Glenn Beck said years ago, “Go to the original source.”

The History

For those who know American history, know that the Constitution didn’t just magically appear, there was no magic dust sprinkled over the Constitutional Convention; instead there were arguments, debates and objections and one state,New York, opposed to the Constitution from its very beginning.

In 1787, the Continental Convention sent the proposed Constitution to the various States for ratification, [1] needless to say, not all States were as enthusiastic about the proposed new form of government as those at the convention. This lack of enthusiasm was expressed by a series of articles, essays and papers (Anti-Federalist Papers) published throughout the States, urging that the new Constitution not be ratified. While these Anti-Federalist Papers were being published, Governor Clinton ofNew York, called a convention to debate ratification, of those in attendance; three fourths were opposed to the proposed new form of government. Although there were a number of other objections, which would eventually be addressed, however, the major point of contention, not only inNew York, but in the other States as well, was the “General Welfare Clause”. It was these three words, Clinton and other who were opposed to the Constitution, felt gave Congress unlimited powers. They felt that the States would eventually be swallowed by the central Government (ed. note: Sad to say, that 225 years later it would be so true).

In order to strengthen the argument for ratification and counter the Anti-Federalist Papers, James Madison, Alexander Hamilton and John Jay, wrote a series of 85 papers, collectively known as the Federalist (today we refer to them as the Federalist Papers). This series of papers was primarily addressed to the people ofNew York, and were the explanation of the Constitution and an attempt to convince them that their “objecting convention” should ratify the new form of government. [2]

The Anti-Federalist Papers expressed the many concerns thatNew York and other States had, but the major concern was the power and authority that was granted to Congress by “the general welfare clause.

In Defense of Ratification

The “charges” put forth in the Anti-Federalist Papers angered Madison, who wrote in Federalist 41, “No stronger proof could be given of the distress under which these writers labor for objections than their stooping to such a misconstruction” (By “stooping” Madison clearly meant that those who objected knew better and were being unfair in their opposition to the General Welfare Clause of the Constitution).[3]

Madison, continuing to explain the language under the established rules of interpretation, explained that there had been no enumeration of powers other than for taxing and spending. He said, “than there might be some color to the objection that of Congress would be without restraint – though that would be an ’awkward way of describing an authority to legislate in all possible cases.’”

Madison then asked, “But what color can the objection have, when the specification of the objects alluded to by these general terms immediately follows, and not even separated by a longer pause then a semi-colon?

Basically, the Constitutional granting of the power to tax and spend for the “common Defence and general Welfare” is followed in the same sentence by all the other “powers”, to borrow money, to regulate commerce, and so on. The first “power”, to tax and spend, is inseparable in the context from all the other “powers”. The “power” to tax and spend was granted to fulfill all of the seventeen preceding paragraphs of clauses as well as the one in which it appears.[4]

Madisonwould once again address question of the “common Defence and general welfare” clause during the meeting of the First Congress, but let’s “hear” what Hamilton and others had to say about this clause.

Alexander Hamilton, the only representative of the New Yorkdelegation to sign the Constitution during the Convention, wrote in Federalist No. 83, “The plan of the Convention declares that the power of Congress, or, in other words, of the National Legislature, shall extend to certain enumerated cases. This specification of particulars evidently excluded all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.

Just as James Madison was one of, if not the most knowledgeable, historian attending the Constitutional Convention, James Wilson, a scholar fromEdinburgh, was the most knowledgeable lawyer in attendance at the Convention.[5]

He would explain the taxing and spending power in a course of lectures at what would later become the Universityof Pennsylvania. In this series of lectures he said in part, “The National Government was intended to promote the ‘general Welfare.’ For this reason Congress have power to regulate commerce . . . 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.” Using this he would move on from the Patent and Copyright Clause [ Article 2, Section 8, Clause 8 –“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”] to explain all of the other clauses in Section 8 granting power. He would clearly explain that Congress was to “provide for the common Defence and general Welfare” by exerting the powers granted to it in the seventeen paragraphs following the first, by which it was authorized “to lay and collect taxes.”

Now, three members of the Constitutional Convention, Madison, Hamilton and Wilson wrote and spoke out concerning the purpose of the General Welfare Clause. And none of them believed the Clause gave any power to Congress beyond the bounties set forth in the eighteen paragraphs of Article 1, Section 8 However,Madisonwould once again have to explain the General Welfare Clause during the very first Congress of the newly formed Government.

The First Subsidy [6]

One of the first dutiesMadison, who was a member of the House of Representatives, faced was to gathered and formulated the twelve leading objections to the Constitution that had been received from the ratifying conventions in the States for submission as amendments, ten of which were ratified and became known as the Bill of Rights.

Later during this first session of Congress, the first idea of a “Subsidy” made its appearance in Congress and once again,Madisonhad to clarify what was meant to the “common Defence and general welfare” clause.

A bill was introduced to pay the cod fishermen a bounty, to basically subsidize a private interest. Madison spoke out against this bill, stating that those who wrote the Constitution and those who ratified it did not conceive that it would not be an indefinite Government, but a limited one, “tied down to the specified powers, which explain and define general terms, “ He continued, “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor. . . . Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.

Madisonshould be considered a major prophet for, “The consequences of the misapplication by Congress of the money of the taxpayers — a scourge of mounting debt and cumulative deficits.”

Later in 1798 during the 5th Congress, Abraham Baldwin of Georgia, who had been a member of the Constitutional Convention, said in Congress that “to provide for the common Defence and general Welfare” had “never been considered as a source of legislative power, as it is only a member introduced to limit the other parts of the sentence.” That is, it limits the purposes for which Congress can “lay and collect taxes” and exerts its other granted powers. [7]

However, though four brilliant men, who attended the Constitutional Convention, explained the General Welfare Clause to the satisfaction of the States and Madison had once again, explained the Clause during the first session of the first Congress, it was in 1817, when Thomas Jefferson would brilliantly defined the General Welfare Clause.

Continued in Part 2 Thomas Jefferson Defines and Presidents Uphold Constitution

[1] Norton, Thomas James, Undermining the Constitution A History of Lawless Government, the Devin – Adair Co, New York, New York, 1950. Pg 184
[2] Ibid. Pg 185
[3] Ibid. Pg 187
[4] Ibid. Pg 187
[5] Ibid. Pg 190
[6] Ibid. Pg 188
[7] Ibid. Pg 189


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