The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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TO ANDREW STEVENSON. |
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 | The writings of James Madison, |  |
TO ANDREW STEVENSON.
Dr. Sir 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.[122]
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 over-values, 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
the States merely Federal will not accomplish the objects proposed
by the Articles of the 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
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 and
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 afterward inserted, being
in the Draft simply, "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.[123]
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
during the late war, for the common defence 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 expenses 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 expenses," 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 fulfill
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 and discharge the debts of the United
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
[old debts] to add, "for payment of said debts, and for defraying
the expenses that shall be incurred for the common defence
and general welfare." The proposition was disagreed to, one
State only voting for it.
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 expense 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 shows it might be well if it had been done,
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 modification 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;
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 endeavoured to derive the
were declared & became independent States, and also from the
tenor of the "Articles of Confederation" themselves.[124] 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 rights, 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 States never possessed & could not retain a
general power over the others."
The authority & argument here resorted to, if proving the
ingenuity & patriotic anxiety of the author on one hand,
show 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;
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 time, 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 list 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 and in the nature of "Declarations
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
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. show 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, cannot 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
Oct. 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, although a member of
the Senate of the U. States, when amendments of 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 these 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.
Allow me, my dear sir, to express on this occasion, what I
always feel, an anxious hope that as our Constitution rests on
a middle ground between a form wholly national and one
the States in their united character and in their individual
characters, this peculiarity of the system will be kept in view,
as a key to the sound interpretation of the instrument, and a
warning agst. any doctrine that would either enable the States
to invalidate the powers of the U. States, or confer all power
on them.
I close these remarks which I fear may be found tedious
with assurances of my great esteem, and best regards.[125]
In a letter of the same date enclosing the letter, Madison said:
"I have omitted a vindication of the true punctuation of the clause,
because I now take for certain that the original Document signed by the
members of the Convention, is in the Department of State, and that
it testifies for itself against the erroneous editions of the text in that
particular. Should it appear that the Document is not there, or that
the error had slipped into it, the materials in my hands to which you
refer, will amount I think to a proof outweighing even that authority.
It would seem a little strange, if the original Constitution be
in the Department of State, that it has hitherto escaped notice. But
it is to be explained I presume by the fact that it was not among the
papers relating to the Constn. left with Genl. Washington, and there
deposited by him; but, having been sent from the Convention to the old
Congress, lay among the mass of papers handed over on the expiration
of the latter to that Dept. On your arrival at Washington, you will be
able personally, or by a friend having more leisure, to satisfy yourself
on these points. It appears as you foretold that my letter in the
Northn Review has encountered newspaper criticism; but as yet little
if at all I believe on the ground looked for. In some instances, both
the letter & the report of 1799 are misunderstood, and in none that
I have seen has the distinction been properly kept in view between the
authority of a higher Tribunal to decide on the extent of its own
jurisdiction, compared with that of other Tribunals, and its claim
of jurisdiction in any particular case or description of cases as within
that extent; it being presumed that if not within the extent of its
jurisdiction it will be pronounced coram non judice; and it being understood
that if not so, it will be a case of usurpation & to be treated
as such."—Mad. MSS.
(For the punctuation of the Constitution see ante, Vol. IV., p. 489.)
He wrote a memorandum to accompany his letter to Stevenson:
"Memorandum not used in letter to Mr. Stevenson
"These observations will be concluded with a notice of the argt. in
favor of the grant of a full power to provide for Common D. & Genl.
w. drawn from the punctuation in some Editions of the Constn.
"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 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.
"Without enquiring how far the text in this form wd. convey the
power in question; or admitting that any mode of pointing or distributing
the terms could invalidate the evidence wch. has been exhibited,
that it was not the intention of the Genl. or of the St. Convns. to
express by the use of the terms C.D. & G.W. a substantive & indefinite
power; or to imply that the Gen. terms were not to be explained
and limited by the specified powers, succeeding them; in
like manner as they were explained & limited in the former Articles
of Confedn. 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 shewn, as the true intention of the parties
to the Constn. has been shewn 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 Draft of a Constn. reported by a Come. of
five members, & entered on the 12. of Sepr.
"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 & now in my possession
the text is so pointed as to unite the parts in one substantive clause—
an inference favored also by a previous Report of Sept. 4 by a Come.
of eleven in which the parts of the clause are united not separated.
"And that the true reading of the Constn. as it passed, is that which
unites the parts, is abundantly attested by the following facts.
Such is the form of text in the Constn. printed at the close
of the Convention, after being signed by the members, of which a copy
is also now in my possession.The case is the same in the Constn. reported from the Convention
to the old Congress as printed on their Journal of Sepr. 28, 1787, and
transmitted by that Body to the Legislatures of the several StatesThe case is the same in the copies of the transmitted Constn.
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 Edn. of the Const, published in
1814 by order of the Senate; as also in the Constn. as prefixed to the
Edn. of the Laws of the U. S.
"1.
"2.
"3.
"Should it be not contested that the origl. Const. in its engrossed
or enrolled state with the names of the subscribing members suffixed
thereto, presents the text in the same form, that alone must extinguish
the argt. 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 wd. be of comparative probability of error even in the
enrolled doct. and in the no. & variety of the concerning examples in
opposition to it.
"And a 2d. question, whether the construction put on the text in any
of its forms or punctuations ought to have the weight of a feather
agst. the solid & diversified proofs which have been pointed out of the
meaning of the parties to the Constn.
"It might be added, that in the Journal of Septr. 14 the clause to
which the proviso was added now a part of the Constn viz—'but all
duties, imposts & excises shall be uniform throughout the U.S.,'
is called the 'first' of course a 'single' clause, and it is obvious that
the uniformity required by the proviso implies that what is referred to
was a part of the same clause with the proviso not an antecedent
clause altogether separated from it."—Mad. Mss.
A final paragraph for the letter of Novr. 27, 1830 to Mr. Stevenson.
"Allow me dear Sir to express on this occasion, what I always feel,
an anxious hope that as our Constitution rests on a middle ground
between a form, wholly national, and one merely federal, and on a division
of the powers of Govt. between the States in their united character
and in their individual characters, this peculiarity of the system will
be kept in view as a key to the sound interpretation of the Instrument
and a warning agst. any doctrine that would either enable the States
to invalidate the powers of the U. States, or confer all power on them."
—Madison's Note.
The following is not in the Madison MSS., but is from the Works
of Madison (Cong. Ed.):
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 &
general welfare, and a power to employ all the means of giving full
effect to objects embraced by the terms.
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.But admitting the distinction as alleged, the appropriating
power to all objects of "common defence and general welfare" is
itself of sufficient magnitude to render the preceding views of the
subject applicable to it. Is it credible that such a power would have
been unnoticed and unopposed in the Federal Convention? in the
State Conventions, which contended for, and proposed restrictive and
explanatory amendments? and in the Congress of 1789, which recommended
so many of these amendments? A power to impose unlimited
taxes for unlimited purposes could never have escaped the sagacity
and jealousy which were awakened to the many inferior and minute
powers which were criticised and combated in those public bodies.A power to appropriate money, without a power to apply it in
execution of the object of appropriation, could have no effect but
to lock it up from public use altogether; and if the appropriating
power carries with it the power of application and execution, the
distinction vanishes. The power, therefore, means nothing, or what
is worse than nothing, or it is the same thing with the sweeping power
"to provide for the common defence and general welfare."To avoid this dilemma, the consent of the States is introduced
as justifying the exercise of the power in the full extent within their
respective limits. But it would be a new doctrine, that an extra-constitutional
consent of the parties to a Constitution could amplify
the jurisdiction of the constituted Government. And if this could not
be done by the concurring consents of all the States, what is to be said
of the doctrine that the consent of an individual State could authorize
the application of money belonging to all the States to its individual
purposes? Whatever be the presumption that the Government of the
whole would not abuse such an authority by a partiality in expending
the public treasure, it is not the less necessary to prove the existence
of the power. The Constitution is a limited one, possessing no
power not actually given, and carrying on the face of it a distrust of
power beyond the distrust indicated by the ordinary forms of free
Government.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; and all such minorities, however composed, act with
consistency in opposing a latitude of construction, particularly that
which has been applied to the terms "common defence and general
welfare," which would impair the security intended for minor parties.
Whether the distrustful precaution interwoven in the Constitution
was or was not in every instance necessary; or how far, with certain
modifications, any farther powers might be safely and usefully granted,
are questions which were open for those who framed the great Federal
Charter, and are still open to those who aim at improving it. But
while it remains as it is, its true import ought to be faithfully observed;
and those who have most to fear from constructive innovations ought
to be most vigilant in making head against them.But it would seem that a resort to the consent of the State Legislatures,
as a sanction to the appropriating power, is so far from being
admissible in this case, that it is precluded by the fact that the Constitution
has expressly provided for the cases where that consent was to
sanction and extend the power of the national Legislature. How can
it be imagined that the Constitution, when pointing out the cases
where such an effect was to be produced, should have deemed it
necessary to be positive and precise with respect to such minute spots
as forts, &c., and have left the general effect ascribed to such consent
to an argumentative, or, rather, to an arbitrary construction? And
here again an appeal may be made to the incredibility that such a
mode of enlarging the sphere of federal legislation should have been
unnoticed in the ordeals through which the Constitution passed, by
those who were alarmed at many of its powers bearing no comparison
with that source of power in point of importance.Put the case that money is appropriated to a canal[126] to be
cut within a particular State; how and by whom, it may be asked, is
the money to be applied and the work to be executed? By agents
under the authority of the General Government? then the power is no
longer a mere appropriating power. By agents under the authority
of the States? then the State becomes either a branch or a functionary
of the Executive authority of the United States; an incongruity that
speaks for itself.The distinction between a pecuniary power only, and a plenary
power "to provide for the common defence and general welfare,"
is frustrated by another reply to which it is liable. For if the clause
be not a mere introduction to the enumerated powers, and restricted
to them, the power to provide for the common defence and general
welfare stands as a distinct substantive power, the first on the list
of legislative powers; and not only involving all the powers incident to
its execution, but coming within the purview of the clause concluding
the list, which expressly declares that Congress may make all laws
necessary and proper to carry into execution the foregoing powers
vested in Congress.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.
It equally appears that the alleged power to appropriate money to the
"common defence and general welfare" is either a dead letter, or swells
into an unlimited power to provide for unlimited purposes, by all the
means necessary and proper for those purposes. And it results finally,
that if the Constitution does not give to Congress the unqualified
power to provide for the common defence and general welfare, the
defect cannot be supplied by the consent of the States, unless given
in the form prescribed by the Constitution itself for its own amendment.As the people of the United States enjoy the great merit of having
established a system of Government on the basis of human rights,
and of giving to it a form without example, which, as they believe,
unites the greatest national strength with the best security for public
order and individual liberty, they owe to themselves, to their posterity,
and to the world, a preservation of the system in its purity, its symmetry,
and its authenticity. This can only be done by a steady attention
and sacred regard to the chartered boundaries between the portion
of power vested in the Government over the whole, and the portion undivested
from the several Governments over the parts composing the
whole; and by a like attention and regard to the boundaries between the
several departments, Legislative, Executive, and Judiciary, into which
the aggregate power is divided. Without a steady eye to the landmarks
between these departments, the danger is always to be apprehended,
either of mutual encroachments, and alternate ascendencies
incompatible with the tranquil enjoyment of private rights, or of
a concentration of all the departments of power into a single one,
universally acknowledged to be fatal to public liberty.And without an equal watchfulness over the great landmarks
between the General Government and the particular Governments,
the danger is certainly not less, of either a gradual relaxation of the
band which holds the latter together, leading to an entire separation,
or of a gradual assumption of their powers by the former, leading to a
consolidation of all the Governments into a single one.The two vital characteristics of the political system of the United
States are, first, that the Government holds its powers by a charter
granted to it by the people; second, that the powers of Government
are formed into two grand divisions—one vested in a Government
over the whole community, the other in a number of independent
Governments over its component parts. Hitherto charters have been
written grants of privileges by Governments to the people. Here they
are written grants of power by the people to their Governments.Hitherto, again, all the powers of Government have been, in effect,
consolidated into one Government, tending to faction and a foreign
yoke among a people within narrow limits, and to arbitrary rule among
a people spread over an extensive region. Here the established system
aspires to such a division and organization of power as will provide at
once for its harmonious exercise on the true principles of liberty over
the parts and over the whole, notwithstanding the great extent of the
whole; the system forming an innovation and an epoch in the science of
Government no less honorable to the people to whom it owed its
birth, than auspicious to the political welfare of all others who may
imitate or adopt it.As the most arduous and delicate task in this great work lay in
the untried demarkation of the line which divides the general and
the particular Governments by an enumeration and definition of the
powers of the former, more especially the legislative powers; and as
the success of this new scheme of polity essentially depends on the
faithful observance of this partition of powers, the friends of the scheme,
or rather the friends of liberty and of man, cannot be too often earnestly
exhorted to be watchful in marking and controlling encroachments by
either of the Governments on the domain of the other.
1.
2.
3.
4.
5.
6.
On more occasions than one, it has been noticed in Congressional
debates that propositions appear to have been made in the Convention
of 1787 to give to Congress the power of opening canals, and to have
been rejected; and that Mr. Hamilton, when contending in his report
in favour of a bank for a liberal construction of the powers of Congress,
admitted that a canal might be beyond the reach of those powers.—
Madison's Note.
| The writings of James Madison, | |