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establish the following Constitution for the government of ourselves and our posterity.”—(735.)
Here nothing is said of any particular objects for which the government is to be established. So, in article 6, clause 1, it is provided—“The legislature of the United States shall have power to levy and collect taxes, duties, imposts and excises;” but no particular objects for which taxation should be levied are mentioned. It does not contain the words in our present Constitution, namely: to pay the debts and provide for the comnion defence and general welfare. This draft was also referred to the committee of the whole house. It is notorious that the difference between the members from the large and small States now began to be manifested. Violent discussions ensued, threatening the dissolution of the Convention, and which were never perfectly healed. However, after many questions had been agitated, and a committee on detail had been appointed, this committee reported, by Mr. Rutledge, another draft of a Constitution, but which draft merely copies the words, already quoted above, of Mr. Pinckney's draft.-(1226.) The preamble and article 6, clause 1, are in the same words in both drafts. At the time of making this report, the same committee had under consideration the following resolution of Mr. Madison
“6. Resolved, That the Naticnal 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."--(1221.)
Again, at a subsequent day, Mr. Madison proposed, in order to be referred, to give Congress power “to secure the payment of the public debt.”—(1355.) These two several propositions were referred to the committee on detail. On a subsequent day the committee recommend and report—to add at the end of Ist clause, 1st section, 7th article (not as it now stands)—"for the payment of the debts and necessary
expenses of the United States,” etc.; and they recommend to add, at the end of the 16th clause of the 2nd section, 7th article (not where it now stands), "and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the United States, in such manner as shall not interfere with the government of individual States in matters which respect only their internal police, or for which their individual authority may be competent”—(1398). Thus it appears that the Convention, having before it a draft of the Constitution, inserted in places different from those which they now occupy, specific powers to pay debts and provide for the general welfare ; and that these powers were inserted upon the motion of Mr. Madison. There can be no doubt, unless Mr. Madison stultified himself in the “Federalist," that he did intend to confer upon Congress a specific and almost unlimited power to promote the general welfare. And, moreover, he always insisted that Congress had such power, by virtue of the clauses which have been before cited. But to proceed: these reported additions, with numerous others, were, after their adoption by the Convention, referred to a committee "to revise the style of and arrange the articles.”—(1532.) This committee consisted of Mr. Johnson, Mr. Hamilton, Mr. Gouverneur Morris, Mr. Madison and Mr. King. Excepting Mr. Johnson, who was from Massachusetts, the other members were all from the large and suspected States.
The committee on style reported the preamble of the Constitution in the words as we now read them-(1542). They altered the arrangement of the articles made by the committee on detail, and included them thus-
“Sec. 8. The Congress may, by joint ballot, appoint a Treasurer. They shall have power to levy and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States."
Thus adding to the draft of the Constitution originally reported, the power which had been given specially and separately, to pay debts; and, also, the other specific power
which had been separately given to promote the general welfare. The words " for the common defence were never considered separately, and seem to have passed without particular consideration. The other powers were all sharply contested, and formed parts of those objections which then were, as now they are, urged against the Constitution itself. It cannot be denied that the specific power to promote the general welfare, unlimited except by the internal affairs of the States, had been recommended by the committee-(1398). This, too, was on the motion of Mr. Madison. When, therefore, it was referred to the committee to arrange the articles, of which Mr. Madison was a conspicuous member, it is absurd to suppose that the mover of the measure would insert it in the Constitution in such a way as to abrogate and nullify it. On the contrary, we know that it was one of his favourite nieasures.
Let us now finish the investigation of this clause. Much has been said about the power to promote the general welfare, being negatived by the last words of the clause, providing that taxation shall be uniform. Now, whilst the clause stood thus: “The Congress may, by joint ballot, appoint a Treasurer. They shall have power to levy and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence and general welfare of the United States”-various motions were made to strike out the power to elect a Treasurer, and so to alter the clause that it should read as it now does-(1440). Previously, the committee had reported and recommended,
" That there be inserted, after the fourth clause of the seventh section, 'nor shall any regulation of commerce or revenue give preference to the ports of one state over those of another, or oblige vessels bound to or from any state to enter, clear or pay duties in another; and all tonnage duties, imposts and excises, laid by the Legislature, shall be uniform throughout the United States."
On a subsequent day, Mr. Madison states :
“Art. I. Sec. 8. The words “but all such duties, imposts and excises, shall be uniform throughout the United States,' are unanimously annexed to the power of taxation"-(1575).
Thus, after the Convention had adopted specific motions giving Congress power to tax, for the purpose of paying debts and providing for the general welfare, it was declared that the taxation should be uniform. The rest of the report became, and now is, a separate clause of the ConstitutionArt. 1; Sec. 9; Clause 6. The committee of details merely annexed it to the end of the taxation clause, instead of inserting it immediately after the words creating the power of taxation. The reason of this is, that had they inserted it, either they must have made of the uniformity words an awkward parenthesis, or repeated the previous words, “ Congress shall have power to levy taxes, to pay the debts, &c." As it stands, Congress has power to levy taxes, pay debts,
, &c., provided the power is exercised so that the taxes shall be uniform.
Whether, therefore, we look to the history of the power to promote the general welfare, to the movers of the measure, to the arrangement of the style and order of the powers, it is plain that the Convention did give to Congress this power. It is equally plain that the limitations upon the power proposed by Mr. Madison, and recommended by the committee, and adopted by the Convention, are not contained in the succeeding clauses of the 8th section. The limitations proposed by Mr. Madison and the committee, are that Congress shall use this power “in such manner as shall not interfere with the government of individual States, in matters which respect their own internal police, or for which their individual authority may be competent”---(1398). These are the limita-tions, and the only limitations intended to be put upon this power, by the movers of the proposition, the committee that reported, and the Convention that adopted it. On the other hand, all the clauses that follow it, in the 8th section, are distinct and substantive powers. They, according to grammatical construction, leave understood, at the beginning of each clause, the first words of the section, namely: “The Congress shall have power to borrow money, &c. The Congress shall have power to regulate commerce, &c.” Furthermore, the limitations recommended by the committee are not, as we have before stated, to be found in any part of the
8th section of the Constitution. Hence, the attempt to limit the power to promote the general welfare to the objects enumerated in the succeeding clauses of the section, is entirely without warrant. Much has been said about the Convention having refused to authorize internal improvementsmanufactories--a bank. The Convention did so refuse to grant specific powers, distinct from the general welfare, for these purposes. But the effect of that refusal was simply to leave the power unlimited; for, if those objects had been enumerated, if power to promote the general welfare, by establishing manufactories, had been granted, then, of course, it would have excluded the idea that the power could be used for other non-enumerated purposes. The expression of the one would have been the exclusion of the others. So that the Convention did, in fact, refuse to insert any clause which could be construed as a limitation upon the power to promote the general welfare.
Now, we have entered into this tedious inquiry, not to justify the Convention in granting this power; not to sanction the free construction of it, not to intimate our approval of the laws which have been passed in pursuance of it; but to make more clear and unquestionable, the indispensable necessity of eradicating from the Constitution this tremendous power. We believe that the Constitution is what we have shown it to be. We desire that it should not continue in its present state, but should be amended. Those who cannot understand our designs, and mistake our motives, must continue to entertain their suspicions. But every candid and intelligent man will admit that this power, which, limited or unlimited, has always been abused by Congress, ought to be taken from it. It is mere idle disputation to discuss strict construction and free construction, when, by either construction, the power is, and must be, pernicious. Let us leave such discussions to the schools, and, like men of sense, remove the cause of quarrel and prevent misconstruction, by taking away the power to be construed.
Another topic which we propose to notice, is the position, urged in the tract, that the Constitution has made this government partly federal and partly national. Undoubtedly,