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Sep 15, 2017

Constitutional Controversies

Smith discusses some major controversies provoked by the debate over ratification of the U.S. Constitution.

The original U.S. Constitution contains 10 clauses that directly or indirectly supported slavery. Before I examine some of these clauses and the controversies they engendered at the Constitutional Convention in 1787, I wish to provide background on some other controversies surrounding the ratification debates—debates that generated more furor than the slavery provisions.

Alexander Hamilton and James Madison (then an ardent nationalist) worked for years to bring about the Constitutional Convention in 1787. But it was not known as the “Constitutional Convention” at the time. It was usually called the Philadelphia Convention or, sometimes, the Grand Convention, because it was never authorized to draft a new constitution. Rather, it was only authorized (by the Confederation Congress and the several states) to correct and amend the Articles of Confederation (1781).

The nationalists claimed that the Articles of Confederation were woefully deficient, primarily because they did not vest enforceable taxing power in the federal government. The Confederation Congress could levy requisitions on the states but lacked the authority to enforce them. This was the major defect that the Convention was supposed to remedy.

It was clear from the beginning that James Madison and other nationalists had plans far more ambitious than amending the Articles of Confederation. They intended, as they made clear in the initial “Virginia Plan” (drafted by Madison), to scrap the Articles and to draft an altogether new constitution.

This was technically illegal, which is why two of the three delegates from New York—Francis Yates and John Lansing—left the Convention in protest (leaving only Alexander Hamilton) long before it was over. Moreover, suspicions of the nationalists’ real purpose were widespread even before the Convention convened. This is why Rhode Island refused to send delegates, and why Patrick Henry refused to serve as a delegate, explaining that he “smelt a rat.” Madison more or less conceded the technical illegality of the Convention in The Federalist Papers, suggesting that it be viewed as a second American Revolution.

As for the Constitution itself, the Virginia Plan specifically stated that it was meant to establish a “national” government. This was an unpopular label among most Americans, so all references to “national” were replaced with “federal.” 

This tactic enabled champions of the Constitution to call themselves “Federalists” and to smear their critics as “Anti-Federalists.” Before this linguistic coup, “federalism” signified a confederation of sovereign states, as had been established by the Articles of Confederation, so it was a popular notion. But the nationalists, by co-opting the term for themselves, reversed the conventional meaning of this word, and in so doing they incurred the wrath of the traditional federalists, those opponents of the Constitution who became smeared, in effect, as “Antifederalists.” As one of these opponents put it, instead of the words Federalist and Anti-Federalist, we should use the words rat and anti-rat.

That the national government established by the Constitution was to be a powerful government by 18th-century American standards was made unmistakably clear by James Madison during the Convention. He stated on June 29, 1787: “According to the views of every member, the General Government will have powers far beyond those exercised by the British Parliament, when the States were part of the British Empire.”

Fully to appreciate the implications of this remark, we need only recall that Americans had recently concluded a protracted and bloody war against the selfsame parliamentary powers to which Madison referred. Yet the Constitution was intended to establish a government with “powers far beyond” even those powers. Although many Antifederalists conceded that the Articles of Confederation required some revisions, they protested, in the words of one critic: “Instead of being thirteen republics, under a federal head, [the proposed Constitution] is clearly designed to make us one consolidated government.”

Article I, Section 8 of the Constitution authorizes Congress to “lay and collect Taxes, Duties, Imposts, and Excises.” There is no mention of a limit to this taxing power. When opponents of the Constitution vigorously protested the absence of any limit on the power of Congress to tax, both Hamilton and Madison (in the Federalist Papers) expressly argued that no such limit should be imposed. As Hamilton put it in No. 31, “the Federal Government must of necessity be invested with an unqualified power of taxation in the ordinary modes.” (My italics.) Madison agreed completely.

The “general welfare” clause (article 1, section 8) provoked strenuous objections by opponents of the Constitution (“Antifederalists”) that this gave to Congress a blank check to pass any legislation it deemed conducive to the public good. In response, James Madison and other defenders of the Constitution maintained that the general welfare clause is not a grant of unlimited power but merely a statement of the general purpose for which Congress could levy taxes. The powers of Congress, they insisted, are specified in the list of enumerated power that follows the general welfare clause.  Article 1, Section 8 of the U.S. Constitution begins as follows:

The Congress 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; but all Duties Imposts and Excises shall be uniform throughout the United States;….

This clause ends with a semicolon, after which we find a list of the so-called enumerated powers granted to Congress, including: “To borrow Money on the credit of the United States; to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes; To establish an uniform Rule of Naturalization,” etc.

The basic point of contention was whether the grant of power of Congress to provide for the “general welfare of the United States” specifies the purpose of the enumerated powers, or whether it is a separate and distinct power apart from the enumerated powers—a power whose range would ultimately be determined by Congress itself?

Antifederalists protested that the general welfare clause would be construed as a separate and distinct power; and since “general welfare” has no clear meaning, it would effectively nullify the enumerated powers by granting an undefined and therefore indefinite power to Congress. One Antifederalist, writing under the pseudonym “Brutus,” expressed this concern as follows:

It will…be matter of opinion, what tends to the general welfare; and the Congress will be the only judges in the matter. To provide for the general welfare, is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare; and both sides may be honest in their professions, or both may have sinister views. Those who advocate this new constitution declare, they are influenced by a regard to the general welfare; those who oppose it, declare they are moved by the same principle; and I have no doubt but a number of both sides are honest in their professions; and yet nothing is more certain than this, that to adopt this constitution, and not to adopt it, cannot both of them be promotive of the general welfare.

When confronted with a vague term like “general welfare,” the key question is: Who shall decide in what the “general welfare” consists? If Congress is vested with the power to decide this matter for itself, “it is a truth confirmed by the unerring experience of ages that every man and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way.”

In The Federalist (No. 41), James Madison responded to the fears voiced by Antifederalists about the general welfare clause. Articulating the view that would later become a mainstay of strict constructionism, he argued that the power to provide for the general welfare was never intended to be a separate and distinct power granted to Congress, and that the meaning of the “general welfare” is confined to the subsequent list of enumerated powers.

Perhaps the most interesting aspect of Madison’s discussion is the contempt he expressed for those Antifederalists who warned that this clause would grant virtually unlimited powers to Congress: “No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction.” Madison claimed that the Antifederalist argument would be plausible only if the Constitution contained “no other enumeration or definition of the powers of the Congress.” But this argument is not plausible, given that the general terms “common defense and general welfare” are immediately followed by a list of enumerated powers and are “not even separated by a longer pause than a semicolon.” It is not reasonable to suppose that “one part of the same sentence be excluded altogether from a share in the meaning,” and that “the clear and precise expressions” of the enumerated powers be denied any role in defining “the more doubtful and indefinite terms.” After all, why would the enumerated powers have been included in the first place—what purpose would they serve?—if they would effectively be nullified by a general, undefined, and indefinite grant of power to promote the “general welfare”?

So obvious did this interpretation seem to Madison that he could not take the Antifederalist argument seriously. To claim that the enumerated powers should play no role in explaining or qualifying the meaning of “general welfare” can have no other effect than “to confound and mislead” the American people. Americans must therefore decide whether the framers of the Constitution deliberately set out to deceive them, or whether Antifederalists were deliberately distorting the meaning of the general welfare clause in order to inflame the deep-seated fear of a government with unlimited power. Of course, there was no doubt in Madison’s mind about the correct explanation. Thus did Madison emphatically deny that the general welfare clause “amounts to an unlimited concession to exercise every power which may be alleged to be necessary for the common defence or general welfare.”  

Madison’s interpretation was echoed during the Virginia ratifying convention (June, 1788) by Governor Edmund Randolph (who, like Madison, had served as a delegate to the Constitutional Convention). After accusing Antifederalists of using highly colored rhetoric to exaggerate “the dangers of giving the General Government an indefinite power of providing for the general welfare,” Randolph insisted that “no such power is given.” The “general welfare” is not a separate and independent power but merely specifies the purpose for which Congress is empowered to levy taxes. To interpret it as a grant of indefinite power is “absurd”—treason against common language”—because it would make nonsense out of the subsequent list of enumerated powers.

Despite Madison’s condescending attitude toward the objections of Antifederalists, and despite Randolph’s charge that their interpretation was “absurd” and “treason against common language,” it didn’t take long for the prediction of Antifederalists—namely, that the general welfare clause would be construed as a grant of indefinite power to Congress—to become true. In late 1791, Alexander Hamilton (then Secretary of the Treasury in the Washington Administration) produced his highly influential Report on Manufactures. In this detailed defense of governmental intervention to promote various industries in the United States, Hamilton defended bounties as necessary to make certain industries viable in America.

The problem for Hamilton was that the Constitution nowhere authorizes the payment of such bounties; indeed, to the extent to which bounties benefit particular industries at the expense of taxpayers, farmers, and other industries, they would seem to run afoul of the requirement that taxes serve the general welfare rather than special interests.

The first thing Hamilton needed to do was to argue that bounties, however much they may seem to benefit some people at the expense of others, are conducive to the growth of an economy and therefore further the general welfare, But even if we grant this, the problem remains that bounties are not included in the list of enumerated powers. Hamilton meets this objection by outlining his broad interpretation of the general welfare clause—an interpretation that would later receive the sanction of the U.S. Supreme Court

Hamilton maintained that “the terms ‘general welfare’ were doubtless intended to signify more than was expressed” by the enumerated powers; “otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision.” Hamilton continued:

The phrase is as comprehensive as any that could have been used because it was not fit that the constitutional authority of the Union, to appropriate its revenues should have been restricted within narrower limits than the ‘General Welfare’ and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufacturers and of Commerce are within the sphere of the national Councils as far as regards its application of Money.

In 1936, the broad interpretation of the general welfare clause that Madison contemptuously dismissed as a bogeyman of the Antifederalists was embraced by the U.S. Supreme Court.  

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